As submitted to the Securities and Exchange Commission on August 14, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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Thomas & Betts Corporation
(Exact name of Registrant as specified in its charter)
Tennessee 22-1326940
(State or jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
8155 T&B Boulevard
Memphis, Tennessee 38125
(901) 252-8000
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
JERRY KRONENBERG, ESQ.
Vice President, General Counsel and Secretary
Thomas & Betts Corporation
8155 T&B Boulevard
Memphis, Tennessee 38215
(901) 252-8000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
SARAH JONES BESHAR, ESQ.
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
(212) 450-4000
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Approximate date of commencement of proposed sale to the
public: From time to time after the effective date of this Registration
Statement as determined in light of market conditions and other factors.
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 (the "Securities Act"), 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 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 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. [ ]
<TABLE>
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<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed
Maximum Proposed
Amount Offering Maximum Amount of
Title of Each Class of to be Price Aggregate Offering Registration
Securities to be Registered Registered(1) Per Unit Price(2) Fee
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<S> <C> <C> <C> <C>
Debt Securities
Common Stock and Rights(2)
Preferred Stock $600,000,000(3) 100% $600,000,000 $177,000
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</TABLE>
(1) Estimated solely for purposes of determining the registration fee.
(2) The Preferred Stock Purchase Rights currently trade with the Registrant's
Common Stock.
(3) Such indeterminate amount of Debt Securities or such indeterminate number
of shares of Preferred Stock or Common Stock as may, from time to time, be
issued at indeterminate prices, the combined total of one or all of such
offerings not to exceed $600,000,000.
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section
8(a), may determine.
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EXPLANATORY NOTE
This Registration Statement contains two forms of prospectus:
each, as supplemented, to be used in connection with offerings of (1) debt
securities; or (2) common stock and preferred stock, respectively. No
prospectus will be used to consummate sales of securities unless accompanied
by a prospectus supplement applicable to the securities offered thereby.
PROSPECTUS
[T&B Logo]
Thomas & Betts Corporation
By this Prospectus, we may offer up to
$600,000,000 DEBT SECURITIES
from time to time.
We will provide the specific terms of each series or
issue of the Debt Securities in supplement to this
prospectus, including the aggregate principal amount,
denomination, purchase price, currency, rate and time
of payment of interest, any other terms of a specific
series of Debt Securities, net proceeds we receive and the
plan of distribution. You should read this prospectus and
the supplements carefully before you invest.
The Debt Securities have not been approved by the SEC or any state
securities commission. Neither the SEC nor any state securities
commission has determined that this prospectus is accurate or complete.
Any representation to the contrary is a criminal offense.
This Prospectus is dated August __, 1998.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN
OFFER TO SELL THESE SECURITIES AND WE ARE NOT SOLICITING OFFERS TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
AVAILABLE INFORMATION
Thomas & Betts Corporation (the "Corporation") is subject to
the informational requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and in accordance therewith files reports and
other information with the Securities and Exchange Commission (the
"Commission"). Reports, proxy and information statements and other
information filed by the Corporation with the Commission can be inspected, and
copies may be obtained at prescribed rates, at the Public Reference Section of
the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, as well as at
the following Regional Offices of the Commission: Chicago Regional Office, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661-2511 and New York
Regional Office, 7 World Trade Center, New York, New York 10048. Information
on the operation of the Public Reference Room may be obtained by calling the
Commission at 1-800-SEC-0330. Such material can also be accessed
electronically by means of the Commission's home page on the Internet at
http://www.sec.gov. and inspected and copied at the offices of the New York
Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
This Prospectus constitutes a part of a registration statement
on Form S-3 (together with all amendments and exhibits, herein referred to as
the "Registration Statement") filed by the Corporation under the Securities
Act of 1933, as amended (the "Securities Act"). This Prospectus does not
contain all of the information included in the 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
Corporation and the securities offered hereby.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission in accordance
with the provisions of the Exchange Act are incorporated herein by reference
and made a part hereof.
1. The Corporation's Annual Report on Form 10-K for the fiscal
year ended December 28, 1997 filed March 19, 1998.
2. The Corporation's Quarterly Report on Form 10-Q for the
fiscal quarter ended April 5, 1998, filed May 20, 1998.
3. The Corporation's Current Reports on Form 8-K dated February
5, 1998, February 10, 1998, May 7, 1998 and July 30, 1998 and filed
February 10, 1998, February 19, 1998, May 7, 1998 and July 30, 1998,
respectively.
All documents filed by the Corporation pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Prospectus and before the termination of the offering made by this Prospectus
shall be deemed to be incorporated by reference in this Prospectus 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, or contained in this Prospectus, 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 statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Corporation will furnish without charge to each person,
including any beneficial owner, to whom this Prospectus is delivered, upon
written or oral request of such person, a copy of any or all documents
incorporated by reference in this Prospectus, without exhibits to such
documents (unless such exhibits are specifically incorporated by reference
into such documents). Requests for such copies should be directed to Jerry
Kronenberg, Corporate Secretary, Thomas & Betts Corporation, 8155 T&B
Boulevard, Memphis, Tennessee 38125 or by telephone at (901) 252-8000.
THOMAS & BETTS CORPORATION
The Corporation designs, manufactures and markets, on a global
basis, electrical and electronic connectors and components with manufacturing
facilities and marketing activities in North America, Europe and the Far East.
The Corporation's products are sold worldwide through electrical, electronic
and HVAC distributors, mass merchandisers, catalogs and home centers, and
directly to original equipment manufacturer ("OEM") markets. The Corporation
operates in three business segments - Electrical, OEMs and Communications.
Electrical construction and maintenance components are sold primarily in North
America, and manufactured and assembled at facilities located in the United
States, Puerto Rico, Canada and Mexico. Electronics components are sold in
North America, Europe and Asia, and manufactured at facilities in the United
States, Europe, Mexico, Japan and Singapore. Other products and
components--principally heaters, heating and ventilation systems, components
for transmission and distribution of electric power, and transmission poles
and towers--are sold primarily in North America and manufactured in the United
States, Europe and Mexico.
Selective acquisitions have been made to broaden the
Corporation's business worldwide. The Corporation currently is evaluating
several acquisition possibilities, and expects to do so from time to time in
the future. The Corporation may finance any such acquisitions which it
consummates through the issuance of private or public debt or equity,
internally generated funds or a combination of the foregoing. Under certain
circumstances, the Corporation may become more leveraged as a result of such
acquisitions. The Corporation's goal is to finance or refinance any such
acquisitions in a manner that will not result in any negative change in the
ratings of its debt securities in the long term. However, no assurance can be
given that the Corporation will be able to meet this goal.
The Corporation was established in 1898 as a sales agency for
electrical wires and raceways and was incorporated in New Jersey in 1917 and
reincorporated in Tennessee in May 1996. The Corporation's executive offices
are located at 8155 T&B Boulevard, Memphis, Tennessee 38215, telephone number
(901) 252-8000.
<TABLE>
<CAPTION>
RATIO OF EARNINGS TO FIXED CHARGES
(Unaudited)
Year Ended Six Months Ended
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January 2, January 1, December 31, December 29, December 28, June 29, July 5,
1994 1995 1995 1996 1997 1997 1998
<S> <C> <C> <C> <C> <C> <C> <C>
------------ -------------- ---------------- ---------------- ------------- ----------- ---------
Ratio of Earnings
to Fixed
Charges.......... 2.9 2.2 (1) 4.2 (2) 2.6 (3) 4.4 4.1 4.7
</TABLE>
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(1) Reflects non-recurring pretax charges of $79 million associated with
various restructuring activities incurred by the Corporation in the fiscal
year ended January 1, 1995. If such charges had not been incurred, the
ratio of earnings to fixed charges in such fiscal year would have been 4.1.
(2) Reflects non-recurring pretax charges of $23 million representing
restructuring costs and other charges incurred by the Corporation in the
fiscal year ended December 31, 1995. If such charges had not been
incurred, the ratio of earnings to fixed charges in such fiscal year would
have been 4.7.
(3) Reflects non-recurring pretax charges of $97.1 million for merger costs,
restructuring costs and other charges in connection with the acquisition of
Augat Inc. and initiatives affecting certain other operations of the
Corporation incurred in the fiscal year ended December 29, 1996. If such
charges had not been incurred, the ratio of earnings to fixed charges in
such fiscal year would have been 4.1.
As a result of an offering of Debt Securities, the Corporation
may be more highly leveraged than currently reflected in this table.
USE OF PROCEEDS
Unless otherwise set forth in a Prospectus Supplement, the net
proceeds from the sale of any debt securities offered pursuant to this
Prospectus and any Prospectus Supplement ("Debt Securities") will be added to
the general funds of the Corporation and used for general corporate purposes.
DESCRIPTION OF DEBT SECURITIES
The discussion that follows is a summary and does not purport
to be complete. The summary includes descriptions of the material terms of
the Indenture (defined herein) and the Debt Securities, the form of which has
been filed as an exhibit to the Registration Statement of which this
Prospectus is a part. For the Debt Securities offered pursuant to this
Prospectus and any Prospectus Supplement, this summary will be qualified in
its entirety by the detailed information appearing in such Prospectus
Supplement, as well as by the form of the Debt Securities of each series
offered thereby and the Indenture. This summary makes use of terms defined in
and is qualified in its entirety by reference to the Indenture.
Except as otherwise indicated below or as described in the
applicable Prospectus Supplement, the following summary will apply to the Debt
Securities and the Indenture. Additional provisions with respect to the
Indenture and the Debt Securities relating to any particular offering of Debt
Securities will be described in the applicable Prospectus Supplement. To the
extent that any provision in any Prospectus Supplement is inconsistent with
any provision of this summary, the provision of such Prospectus Supplement
will control.
General
The Debt Securities are to be issued under an Indenture, dated
as of August 1, 1998 (the "Indenture"), between the Corporation and The Bank
of New York as trustee (the "Trustee"). The Indenture does not limit the
aggregate amount of Debt Securities which may be issued thereunder and
provides that Debt Securities may be issued thereunder in one or more series.
The Debt Securities will be unsecured obligations of the
Corporation and will rank on a parity with all other unsecured and
unsubordinated indebtedness of the Corporation.
The Indenture does not contain any debt covenants or provisions
which would afford the holders of the Debt Securities protection in the event
of a highly leveraged transaction.
Reference is made to the Prospectus Supplement relating to the
particular series of Debt Securities for the following terms of such Debt
Securities:
(1) the title of such Debt Securities and the series in which
such Debt Securities will be included;
(2) the authorized denominations and aggregate principal amount
of such Debt Securities;
(3) whether the Debt Securities are to be issuable in global or
certificated form;
(4) the date or dates on which such Debt Securities will mature;
(5) the rate or rates (which may be fixed or variable) per
annum at which such Debt Securities will bear interest, if any, and if
such rate is variable, the manner of calculation thereof and the date
from which interest will accrue;
(6) the place or places where the principal of (and premium, if
any) and interest, if any, on such Debt Securities shall be payable;
(7) the dates on which such interest will be payable and the
corresponding record dates;
(8) any mandatory or optional sinking fund or purchase fund or
analogous provisions;
(9) the terms and conditions upon which such Debt Securities
may be redeemed, if any, and any redemption price;
(10) if other than the principal amount thereof, the portion of
the principal amount of such Debt Securities which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
5.02 of the Indenture;
(11) provisions, if any, for the defeasance of such Debt
Securities;
(12) the currency in which payments of principal of (and
premium, if any) and interest, if any, on such Debt Securities will be
payable;
(13) whether Additional Amounts are payable with respect to any
Debt Securities;
(14) any additional Events of Default or covenants applicable
to such series; and
(15) any other terms of such series (which terms shall not be
inconsistent with the Indenture). (Indenture, Section 3.01)
If a Prospectus Supplement specifies that a series of Debt
Securities is denominated in a currency or currency unit other than United
States dollars, such Prospectus Supplement shall also specify the denomination
in which such Debt Securities will be issued and the currency in which the
principal, premium, if any, and interest, if any, on such Debt Securities will
be payable, which may be United States dollars based upon the exchange rate
for such other currency unit existing on or about the time a payment is due.
(Indenture, Section 3.01)
Unless otherwise indicated in the Prospectus Supplement
relating thereto, all outstanding Debt Securities will be exchangeable and
transfers thereof will be registrable, and principal of, premium, if any, and
interest, if any, on all Debt Securities will be payable, at the corporate
trust office of the Trustee at 101 Barclay Street, New York, New York 10286;
provided that payment of interest may, at the option of the Corporation, be
made by check mailed to the address of the person entitled thereto as it
appears in the Security Register or by transfer to an account maintained by
the payee with a bank located in the United States. (Indenture, Sections
3.01, 3.07 and 10.02)
Unless otherwise indicated in the Prospectus Supplement
relating thereto, all Debt Securities will be issued only in fully registered
form without coupons in denominations of $1,000 and any integral multiples
thereof. No service charge will be made for any registration of transfer or
exchange of any Debt Securities, but the Corporation may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith. (Indenture, Section 3.05) The Indenture provides that
the Debt Securities may be issuable in permanent global form. (Indenture,
Section 2.03)
The Corporation's right and the rights of its creditors,
including the Holders of any Debt Securities, to participate in the assets of
any subsidiary upon its liquidation or recapitalization would be subject to
the prior claims of such subsidiary's creditors, except to the extent that the
Corporation may itself be a creditor with recognized claims against such
subsidiary. The Indenture does not limit the amount of secured or unsecured
indebtedness which may be incurred by the Corporation or its subsidiaries.
Some of the Debt Securities may be issued as discounted Debt
Securities (bearing no interest or interest at a rate which at the time of
issuance is below market rates) to be sold at a substantial discount below
their stated principal amount.
Certain federal income tax consequences and special
considerations applicable to any such securities will be described in the
applicable Prospectus Supplement.
Book-Entry Procedures
Unless otherwise specified in the applicable Prospectus
Supplement, the Debt Securities will be subject to the provisions described
below. Upon issuance, each series of Debt Securities will be represented by
one or more fully registered global certificates. Each global note will be
deposited with, or on behalf of, the Depository Trust Company (the "DTC"), and
registered in its name or in the name of CEDE & Co. ("Cede"), its nominee. No
Holder will be entitled to receive a note in certificated form, except as set
forth below.
DTC has advised the Corporation that DTC is a limited purpose
trust company organized under the laws of the State of New York, a member of
the Federal Reserve System, a "clearing corporation" within the meaning of the
New York Uniform Commercial Code and a "clearing agency" registered pursuant
to Section 17A of the Exchange Act. DTC was created to hold securities for
its participants ("DTC Participants") and to facilitate the clearance and
settlement of securities transactions between DTC Participants through
electronic book-entries, thereby eliminating the need for physical movement of
certificates. DTC Participants include securities brokers and dealers, banks,
trust companies and clearing corporations. Access to DTC's book-entry system
is also available to others, such as banks, brokers, dealers and trust
companies that clear through or maintain a custodial relationship with a
participant, either directly or indirectly.
Holders that are not DTC Participants but desire to purchase,
sell or otherwise transfer ownership of, or other interests, in Debt
Securities may do so only through DTC Participants. In addition, Holders will
receive all distributions of principal and interest from the Trustee through
the DTC Participants. Under the rules, regulations and procedures creating
and affecting DTC and its operation, DTC is required to make book-entry
transfers of Debt Securities among DTC Participants on whose behalf it acts
and to receive and transmit distributions of principal of, and interest on, the
Debt Securities. Under the book-entry system, Holders may experience some
delay in receipt of payments, since such payments will be forwarded by the
Trustee to Cede, as nominee for DTC, and DTC in turn will forward the payments
to the appropriate DTC Participants.
Distributions by DTC Participants to Holders will be the
responsibility of such DTC Participants and will be made in accordance with
customary industry practices. Accordingly, although Holders will not have
possession of the Debt Securities, the rules of DTC provide a mechanism by
which participants will receive payments and will be able to transfer their
interests. Although the DTC Participants are expected to convey the rights
represented by their interests in any global security to the related Holders,
because DTC can only act on behalf of DTC Participants, the ability of Holders
to pledge Debt Securities to persons or entities that are not DTC Participants
or to otherwise act with respect to such Debt Securities may be limited due to
the lack of physical certificates for such Debt Securities.
None of the Corporation, the Trustee or any other agent of the
Corporation or the Trustee will have any responsibility or liability for any
aspect of the records relating to, or payments made on account of, beneficial
ownership interests in the Debt Securities or for supervising or reviewing any
records relating to such beneficial ownership interests. Since the only
"Holder" will be Cede, as nominee of DTC, Holders will not be recognized by
the Trustee as Holders, as such term is used in the Indenture, and Holders
will be permitted to exercise the rights of Holders only indirectly through
DTC and DTC Participants. DTC has advised the Corporation that it will take
any action permitted to be taken by a Holder under the Indenture and any
Prospectus Supplement only at the direction of one or more DTC Participants to
whose accounts with DTC the related Debt Securities are credited.
Same-Day Settlement and Payment. All payments made by the
Corporation to the Trustee will be in immediately available funds and will be
passed through to DTC in immediately available funds.
The Debt Securities will trade in DTC's Same-Day Funds
Settlement System until maturity, and secondary market trading activity in the
Debt Securities will be required by DTC to settle in immediately available
funds. No assurance can be given as to the effect, if any, of settlement in
immediately available funds on trading activity in the Debt Securities.
Certificated Form. The Debt Securities will be issued in fully
registered, certificated form to Holders, or their nominees, rather than to DTC
or its nominee, only if DTC advises the Trustee in writing that it is no longer
willing, able or eligible to discharge properly its responsibilities as
depository with respect to the Debt Securities and the Corporation is unable to
locate a qualified successor or if the Corporation, at its option, elects to
terminate the book- entry system through DTC. In such event, the Trustee will
notify all Holders through DTC Participants of the availability of such
certificated Debt Securities. Upon surrender by DTC of the definitive global
note representing the series of Debt Securities and receipt of instructions for
reregistration, the Trustee will reissue the Debt Securities in certificated
form to Holders or their nominees. (Indenture, Section 3.05)
Debt Securities in certificated form will be freely
transferable and exchangeable at the office of the Trustee upon compliance
with the requirements set forth in the Indenture. No service charge will be
imposed for any registration of transfer or exchange, but payment of a sum
sufficient to cover any tax or other governmental charge may be required.
(Indenture, Section 3.05)
Merger and Consolidation
The Indenture does not prevent any consolidation or merger of
the Corporation with or into any other Person, or successive consolidations or
mergers in which the Corporation or its successor or successors may be a
party, or any conveyance, transfer or lease of the property of the Corporation
as an entirety or substantially as an entirety, to any Person, provided that:
(i) in case the Corporation shall consolidate with or merge
into another corporation or convey, transfer or lease its properties and
assets as, or substantially as, an entirety to any Person, the
corporation formed by such consolidation or into which the Corporation
is merged or the Person which acquires by conveyance, transfer, or lease
the properties and assets of the Corporation, as, or substantially as,
an entirety shall be a corporation organized and existing under the laws
of the United States of America, any state thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental
thereto executed and delivered to the Trustee, in form satisfactory to
the Trustee, the due and punctual payment of the principal of (and
premium, if any), interest on and any Additional Amounts with respect to
all the Debt Securities and the performance of every covenant of the
Indenture on the part of the Corporation to be performed or observed;
(ii) immediately after giving effect to such transaction, no
Event of Default, or event which after notice or lapse of time, or both,
would become an Event of Default, shall have occurred and be continuing;
and
(iii) the Corporation shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with the Indenture and that all conditions
precedent therein provided for relating to such transaction have been
complied with. (Indenture, Section 8.01)
Upon compliance with such provisions by a successor corporation
or Person, the Corporation would be relieved of its obligations and covenants
under the Indenture and the Debt Securities. (Indenture, Section 8.02)
Modification, Amendment and Waiver
Modifications and amendments of the Indenture may be made by
the Corporation and the Trustee with the consent of the Holders of a majority
in principal amount of each series of Debt Securities to be affected if less
than all series are to be affected by such modification; provided, however,
that no such modification or amendment may, without the consent of the Holder
of each debt security affected thereby:
(a) change the Stated Maturity of the principal of, or any
installment of interest on, any such Debt Security;
(b) reduce the principal amount of, rate of interest on, or
premium payable upon the redemption of, any such Debt Security;
(c) change any place of payment where, or the currency in
which, any Debt Security or the interest or any premium thereon is
payable;
(d) impair the right to institute suit for the enforcement of
any payment on or with respect to any such Debt Security on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date); or
(e) reduce the percentage in principal amount of outstanding
Debt Securities the consent of whose Holders is required for
modification or amendment of the Indenture, for waiver of compliance
with certain provisions of the Indenture or for waiver of certain
defaults. (Indenture, Section 9.02)
The Holders of a majority in principal amount of the
outstanding Debt Securities of any series may on behalf of the Holders of all
Debt Securities of such series waive any past default under the Indenture and
its consequences, except a default in the payment of the principal, premium,
if any, or interest on any Debt Securities or in respect of a covenant or
provision which under the Indenture cannot be modified or amended without the
consent of the Holder of each outstanding Debt Security affected. (Indenture,
Section 5.13)
Events of Default
The following are "Events of Default" under the Indenture with
respect to each series of Debt Securities:
(a) default for more than 30 days in the payment of any
interest on any Debt Security of such series;
(b) default in the payment of principal of, or premium, if any,
on, any Debt Security of such series at its Maturity;
(c) default in the performance, or breach, of any other
covenant of the Corporation in the Indenture for more than 60 days after
written notice as provided in the Indenture;
(d) default in the deposit of any sinking fund payment when and
as due by the terms of a Debt Security of such series; and
(e) certain events in bankruptcy, insolvency or reorganization
in respect of the Corporation or any other Event of Default applicable
to such series. (Indenture, Section 5.01)
If an Event of Default with respect to all Debt Securities of
any series occurs and is continuing, then and in such case (other than an
Event of Default related to bankruptcy, insolvency or reorganization in
respect of the Corporation, as specified in clause (e) above) the Trustee or
the Holders of not less than 50% in aggregate principal amount of the
outstanding Debt Securities of such series may, by a notice in writing to the
Corporation (and to the Trustee if given by Holders), declare to be due and
payable immediately the principal amount of all Debt Securities of such
series. However, at any time after such a declaration of acceleration with
respect to the Debt Securities of such series has been made, but before the
Stated Maturity thereof, the Holders of a majority in principal amount of the
outstanding Debt Securities of such series may, subject to certain conditions,
rescind and annul such acceleration if all Events of Default with respect to
the Debt Securities of such series, other than the nonpayment of accelerated
principal, have been cured or waived as provided in the Indenture.
(Indenture, Section 5.02) For information as to waiver of defaults, see
"Modification, Amendment and Waiver." If an Event of Default related to
bankruptcy, insolvency or reorganization in respect of the Corporation, as
specified in clause (e) above, occurs, the principal amount of all outstanding
Debt Securities of each series will become due and payable without any
declaration or other act on the part of the Trustee or the Holders.
Subject to the duties of the Trustee, if an Event of Default
with respect to the Debt Securities of any series occurs and is continuing,
the Indenture provides that the Trustee will be under no obligation to
exercise any of its rights or powers under the Indenture at the request or
direction of any of the Holders of the Debt Securities of such series, unless
such Holders offer to the Trustee indemnity satisfactory to it. (Indenture,
Sections 6.01 and 6.03) Subject to such provision for indemnity, certain
conditions and certain other rights of the Trustee, the Holders of a majority
in principal amount of the outstanding Debt Securities of any series will have
the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee with respect to the Debt Securities of such series.
(Indenture, Section 5.12)
No Holder of any Debt Security of any series will have any
right to institute any proceeding with respect to the Indenture or for any
remedy thereunder unless such Holder has previously given to the Trustee
written notice of a continuing Event of Default, and unless the Holders of at
least 50% in principal amount of the outstanding Debt Securities of such
series has made written request to the Trustee, and offered indemnity
satisfactory to it, to institute such proceeding as Trustee, the Trustee has
not received from the Holders of a majority in principal amount of the
outstanding Debt Securities of such series a direction inconsistent with such
request and the Trustee has failed to institute such proceeding within 60
days. (Indenture, Section 5.07) However, the Holder of any Debt Security of
such series will have an absolute right to receive payment of the principal of
(and premium, if any, on) and interest on such Debt Security on or after the
respective Stated Maturities expressed in such Debt Security (or, in the case
of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment. (Indenture, Section 5.08)
The Indenture requires the Corporation to furnish to the
Trustee annually a statement as to the absence of certain defaults under the
Indenture. (Indenture, Section 10.05) The Indenture provides that the
Trustee may withhold notice to the Holders of Debt Securities of any default
(except as to payment of principal or interest with respect to such Debt
Securities) if it considers such withholding to be in the interest of the
Holders of such Debt Securities. (Indenture, Section 6.02)
Defeasance and Covenant Defeasance
The Indenture provides, if such provision is made applicable to
the Debt Securities of any series, that the Corporation may elect either (a)
to defease and be discharged from any and all obligations with respect to such
Debt Securities (except for the obligations to register the transfer or
exchange of such Debt Securities, to replace temporary or mutilated,
destroyed, lost or stolen Debt Securities, to compensate the Trustee, to
maintain an office or agency in respect of the Debt Securities and to hold
moneys for payment in trust) ("defeasance") or (b)(i) to be released from its
obligations with respect to such Debt Securities under Sections 8.01
(consolidation, merger and sale of assets) and 10.05 (certificates of
compliance) and (ii) that Section 5.01(c) (as to Sections 8.01 and 10.05, and
as to subsections 5.01(e), 5.01(f) and 5.01(g) (if Section 5.01(g) is
specified in the Prospectus Supplement), as described in the last clause of the
first sentence under "Events of Default" above), shall not be deemed to be
events of default under the Indenture with respect to such series ("covenant
defeasance"), upon the deposit with the Trustee (or other qualifying trustee),
in trust for such purpose, of money, or Government Obligations which through
the payment of principal and interest in accordance with their terms will
provide money, in an amount sufficient to pay the principal of (and premium,
if any) and interest on such Debt Securities, and any mandatory sinking fund
or analogous payments thereon, on the scheduled due dates therefor.
In the case of defeasance, the holders of the Debt Securities
are entitled to receive payments in respect of such Debt Securities solely
from such trust. Such a trust may only be established if, among other things,
the Corporation has delivered to the Trustee an Opinion of Counsel (as
specified in the Indenture) to the effect that the Holders of such Debt
Securities will not recognize income, gain or loss for federal income tax
purposes as a result of such defeasance or covenant defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at
the same time as would have been the case if such defeasance or covenant
defeasance had not occurred. Such Opinion of Counsel, in the case of
defeasance under clause (a) above, must refer to and be based upon a ruling of
the Internal Revenue Service or a change in applicable federal income tax law
occurring after the date of the Indenture. (Indenture, Article 13)
Governing Law
The Indenture and the Debt Securities shall be governed by and
construed in accordance with the laws of the State of New York.
Concerning the Trustee
The Corporation from time to time borrows from, and maintains
deposit accounts with, the Trustee.
The Trustee is entitled to receive such compensation as is
agreed to by the Corporation and reimbursement for all reasonable expenses and
advances, and is indemnified by the Corporation against any and all loss,
liability, damage, claim or expenses, except to the extent due to the
Trustee's negligence or bad faith. The Trustee shall have a lien prior to the
Debt Securities as to all property and funds held by it pursuant to the
Indenture for any amount owing it pursuant to the foregoing sentence, other
than with respect to funds held in trust for the benefit of the Holders of any
particular series of Debt Securities. (Indenture, Section 6.07)
PLAN OF DISTRIBUTION
The Debt Securities may be sold in any of the following ways:
(1) through underwriters or dealers; (2) through agents; or (3) directly to
one or more purchasers (through a specific bidding or auction process or
otherwise).
The distribution of the Debt Securities may be effected from
time to time in one or more transactions at a fixed price or prices, which may
be changed, or at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices.
In connection with the sale of Debt Securities, underwriters or
agents may receive compensation from the Corporation or from purchasers of
Debt Securities for whom they may act as agents in the form of discounts,
concessions or commissions. Underwriters may sell Debt Securities to or
through dealers, and such dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters or commissions
from the purchasers for whom they may act as agents. If a dealer is utilized
to sell the Debt Securities, the Corporation will sell such Debt Securities to
the dealer as principal. The dealer may then resell such Debt Securities to
the public at varying prices to be determined by such dealer at any time of
resale.
Underwriters, dealers and agents that participate in the
distribution of Debt Securities may be deemed to be underwriters, and any
discounts or commissions received by them from the Corporation and any profit
on the resale of Debt Securities by them may be deemed to be underwriting
discounts and commissions, under the Securities Act. Any such underwriter,
dealer or agent will be identified, and any such compensation received from
the Corporation will be described, in the applicable Prospectus Supplement.
Offers to purchase Debt Securities may be solicited directly
and the sale thereof may be made directly to institutional investors or
others, who may be deemed to be underwriters within the meaning of the
Securities Act with respect to any resale thereof. The terms of any such
sales will be described in the Prospectus Supplement relating thereto,
including the terms of any bidding or auction process.
If so indicated in the Prospectus Supplement, the Corporation
will authorize underwriters, dealers or agents to solicit offers by certain
specified institutions to purchase Debt Securities from the Corporation at the
public offering price set forth in the Prospectus Supplement pursuant to
delayed delivery contracts providing for payment and delivery on a specified
date in the future. Such contracts will be subject only to those conditions
set forth in the Prospectus Supplement and the Prospectus Supplement will set
forth the commission payable for the solicitation of such contracts.
Under agreements which may be entered into by the Corporation,
underwriters, dealers and agents who participate in the distribution of Debt
Securities may be entitled to indemnification by the Corporation against
certain liabilities, including liabilities under the Securities Act or to
contribution with respect to payments which the underwriters, dealers or
agents may be required to make in respect thereof.
Unless otherwise indicated in the applicable Prospectus
Supplement, the Corporation does not intend to apply for the listing of any
series of Debt Securities on a national securities exchange. If the Debt
Securities of any series are sold to or through underwriters, the underwriters
may make a market in such Debt Securities, as permitted by applicable laws and
regulations. No underwriter would be obligated, however, to make a market in
such Debt Securities, and any such market-making could be discontinued at any
time at the sole discretion of the underwriters. Accordingly, no assurance
can be given as to the liquidity of, or trading markets for, the Debt
Securities of any series.
Certain of the underwriters, dealers or agents and their
associates may be customers of, engage in transactions with, and perform
services for, the Corporation in the ordinary course of business.
LEGAL MATTERS
Unless otherwise indicated in the Prospectus Supplement
relating to an offering of Debt Securities, the legality of such Debt
Securities will be passed upon for the Corporation by Jerry Kronenberg, Vice
President, General Counsel and Secretary of the Corporation, and by counsel
for any underwriters, dealers and agents.
EXPERTS
The consolidated financial statements of the Corporation and its
consolidated subsidiaries (except the consolidated financial statements of
Augat Inc. (a wholly-owned subsidiary of the Corporation since December 11,
1996) and subsidiaries as of December 29, 1996 and for each of the two years in
the period ended December 29, 1996) as of December 28, 1997 and for each of the
three years in the period ended December 28, 1997, incorporated in this
Prospectus by reference from the Annual Report on Form 10-K of the Corporation
for year ended December 28, 1997 have been audited by KPMG Peat Marwick LLP as
stated in their report, which is incorporated herein by reference. The
financial statements of Augat Inc. and subsidiaries as of December 29, 1996 and
for each of the two years in the period ended December 29, 1996 (consolidated
with those of the Corporation) have been audited by Deloitte & Touche LLP, as
stated in their report which is incorporated herein by reference. Such
financial statements of the Corporation and its consolidated subsidiaries have
been so incorporated in reliance upon the respective reports of such firms
given upon their authority as experts in accounting and auditing. Both of the
foregoing firms are independent auditors.
=======================================================
No dealer, salesperson or other individual has been
authorized to give any information or to make any
representations not contained in this Prospectus in
connection with the offering covered by this
Prospectus. If given or made, such information or
representations must not be relied upon as having
been authorized by the Corporation or the Initial
Underwriters. This Prospectus does not constitute
an offer to sell, or a solicitation of an offer to buy,
the Securities in any jurisdiction where, or to any
person to whom, it is unlawful to make such offer or
solicitation. Neither the delivery of this Prospectus
nor any sale made hereunder shall, under any
circumstances, create an implication that there has
not been any change in the facts set forth in this
Prospectus or in the affairs of the Corporation since
the date hereof.
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TABLE OF CONTENTS
Page
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Available Information................................2
Incorporation of Certain
Documents by Reference............................2
Thomas & Betts Corporation...........................3
Ratio of Earnings to Fixed Charges...................3
Use of Proceeds......................................4
Description of Debt Securities.......................4
Plan of Distribution................................10
Legal Matters.......................................11
Experts.............................................11
=======================================================
=======================================================
$600,000,000
[T&B LOGO]
Debt Securities
--------------
PROSPECTUS
--------------
August __, 1998
=======================================================
PROSPECTUS
----------
[T&B Logo]
Thomas & Betts Corporation
By this Prospectus, we may offer up to
$600,000,000 from time to time
Equity Securities in the form of
PREFERRED STOCK
COMMON STOCK
We will provide the specific terms of each series or issue of
the Equity Securities in supplement to this prospectus,
including terms on number of shares, public offering price,
net proceeds we receive, and the plan of distribution. You
should read this prospectus and the supplements carefully
before you invest.
The Equity Securities have not been approved by the SEC or any state
securities commission. Neither the SEC nor any state securities
commission has determined that this prospectus is accurate or
complete. Any representation to the contrary is a criminal offense.
The date of this Prospectus is August __, 1998.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN
OFFER TO SELL THESE SECURITIES AND WE ARE NOT SOLICITING OFFERS TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
AVAILABLE INFORMATION
Thomas & Betts Corporation (the "Corporation") is subject to
the informational requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and in accordance therewith files reports and
other information with the Securities and Exchange Commission (the
"Commission"). Reports, proxy and information statements and other
information filed by the Corporation with the Commission can be inspected, and
copies may be obtained at prescribed rates, at the Public Reference Section of
the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, as well as at
the following Regional Offices of the Commission: Chicago Regional Office, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661-2511 and New York
Regional Office, 7 World Trade Center, New York, New York 10048.
Information on the operation of the Public Reference Room may be obtained by
calling the Commission at 1-800-SEC-0330. Such material can also be accessed
electronically by means of the Commission's home page on the Internet at
http://www.sec.gov. and inspected and copied at the offices of the New York
Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
This Prospectus constitutes a part of a registration statement
on Form S-3 (together with all amendments and exhibits, herein referred to as
the "Registration Statement") filed by the Corporation under the Securities
Act of 1933, as amended (the "Securities Act"). This Prospectus does not
contain all of the information included in the 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
Corporation and the securities offered hereby.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission in accordance
with the provisions of the Exchange Act are incorporated herein by reference
and made a part hereof.
1. The Corporation's Annual Report on Form 10-K for the fiscal
year ended December 28, 1997 filed March 19, 1998.
2. The Corporation's Quarterly Report on Form 10-Q for the
fiscal quarter ended April 5, 1998, filed May 20, 1998.
3. The Corporation's Current Reports on Form 8-K dated February
5, 1998, February 10, 1998, May 7, 1998 and July 30, 1998 and filed
February 10, 1998, February 19, 1998, May 7, 1998 and July 30, 1998,
respectively.
4. The Corporation's Registration Statement on Form 8-A dated
December 12, 1997, filed December 15, 1997 and the Corporation's Report
on Form 8-B dated May 2, 1996 and filed May 2, 1996.
All documents filed by the Corporation pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Prospectus and before the termination of the offering made by this Prospectus
shall be deemed to be incorporated by reference in this Prospectus 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, or contained in this Prospectus, 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 statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Corporation will furnish without charge to each person,
including any beneficial owner, to whom this Prospectus is delivered, upon
written or oral request of such person, a copy of any or all documents
incorporated by reference in this Prospectus, without exhibits to such
documents (unless such exhibits are specifically incorporated by reference
into such documents). Requests for such copies should be directed to Jerry
Kronenberg, Corporate Secretary, Thomas & Betts Corporation, 8155 T&B
Boulevard, Memphis, Tennessee 38125 or by telephone at (901) 252-8000.
THOMAS & BETTS CORPORATION
The Corporation designs, manufactures and markets, on a global
basis, electrical and electronic connectors and components with manufacturing
facilities and marketing activities in North America, Europe and the Far East.
The Corporation's products are sold worldwide through electrical, electronic
and HVAC distributors, mass merchandisers, catalogs and home centers, and
directly to original equipment manufacturer ("OEM") markets. The Corporation
operates in three business segments - Electrical, OEMs and Communications.
Electrical construction and maintenance components are sold primarily in North
America, and manufactured and assembled at facilities located in the United
States, Puerto Rico, Canada and Mexico. Electronics components are sold in
North America, Europe and Asia, and manufactured at facilities in the United
States, Europe, Mexico, Japan and Singapore. Other products and
components--principally heaters, heating and ventilation systems, components
for transmission and distribution of electric power, and transmission poles
and towers--are sold primarily in North America and manufactured in the United
States, Europe and Mexico.
Selective acquisitions have been made to broaden the
Corporation's business worldwide. The Corporation currently is evaluating
several acquisition possibilities, and expects to do so from time to time in
the future. The Corporation may finance any such acquisitions which it
consummates through the issuance of private or public debt or equity,
internally generated funds or a combination of the foregoing. Under certain
circumstances, the Corporation may become more leveraged as a result of such
acquisitions. The Corporation's goal is to finance or refinance any such
acquisitions in a manner that will not change the ratings of its debt
securities in the long term. However, no assurance can be given that the
Corporation will be able to meet this goal.
The Corporation was established in 1898 as a sales agency for
electrical wires and raceways and was incorporated in New Jersey in 1917 and
reincorporated in Tennessee in May 1996. The Corporation's executive offices
are located at 8155 T&B Boulevard, Memphis, Tennessee 38215, telephone number
(901) 252-8000.
USE OF PROCEEDS
Unless otherwise set forth in a Prospectus Supplement, the net
proceeds from the sale of any shares of Common Stock (as defined below) or
Preferred Stock (as defined below) (together, the "Equity Securities") offered
pursuant to this Prospectus and any Prospectus Supplement will be added to the
general funds of the Corporation and used for general corporate purposes.
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Corporation currently
consists of 250,000,000 shares of Common Stock, $0.10 par value ("Common
Stock"), and 1,000,000 shares of preferred stock, $0.10 par value, issuable in
series (the "Preferred Stock"). As of August 12, 1998, there were outstanding
56,730,919 shares of Common Stock. As of August 12, 1998, there were no
shares of Preferred Stock outstanding, but 300,000 shares of Preferred Stock
have been reserved in connection with the Company's Series A Participating
Cumulative Preferred Stock Purchase Rights.
Common Stock
The following description is a summary of certain provisions of
the Common Stock and does not purport to be complete and is subject to, and is
qualified in its entirety by reference to, the Corporation's bylaws and
Amended and Restated Charter (the "Charter"). The Prospectus Supplement
relating to an offering of Common Stock will describe terms relevant thereto,
including the number of shares offered, the initial offering price, market
price and dividend information.
A Holder of Common Stock is entitled to one vote per share for
each share held of record on all matters voted on by shareholders, including
the election of directors, and is entitled to participate equally in dividends
when and as such dividends may be declared by the Board of Directors out of
legally available funds. As a Tennessee corporation, the Company is subject
to statutory limitation on the declaration and payment of dividends. In the
event of a liquidation, dissolution or winding up of the Corporation, holders
of Common Stock have the right to a ratable portion of assets remaining after
satisfaction in full of the prior rights of creditors, including holders of
the Company's indebtedness, all liabilities and the aggregate liquidation
preferences of any outstanding shares of Preferred Stock. The holders of
Common Stock have no conversion, redemption, preemptive or cumulative voting
rights. All outstanding shares of Common Stock are validly issued, fully paid
and non-assessable.
The Common Stock of the Corporation is listed on the New York
Stock Exchange (symbol "TNB").
Dividends
Holders of Common Stock are entitled to receive dividends when,
as and if declared by the Board of Directors out of funds legally available
therefor subject to the rights of the holders of any outstanding shares of
Preferred Stock. The holders of the Common Stock will share equally, share
for share, in such dividends.
Anti-takeover Provisions
Under the Tennessee Business Combination Act, an interested
shareholder (defined as any shareholder that beneficially owns 10% or more of
a class of a corporation's voting stock) is prohibited from engaging in a
business combination with the Corporation for a period of five years from the
date such shareholder becomes an interested shareholder (the "Acquisition
Date"), except if prior to the Acquisition Date, the Corporation's board of
directors approves the business combination or the stock purchase that results
in the shareholder becoming an interested shareholder. After expiration of
the five year period, the Corporation and the interested shareholder could
merge but only if the merger is approved by two-thirds of the Corporation's
disinterested shares or certain fair price standards are met.
The Corporation's Charter and bylaws include provisions
designed to prevent the use of certain tactics in connection with a potential
takeover of the Corporation. The Charter and bylaws do not permit any of the
Corporation's shareholders to call a special meeting, regardless of the
percentage of voting stock held by such shareholders. Nor can the
Corporation's shareholders call a special meeting by written consent. In
addition, shareholders must give notice of their proposed action more than six
months in advance of the next annual meeting to preserve their right to do so.
Transfer Agent and Registrar
The transfer agent and registrar for Common Stock is First
Chicago Trust Company of New York, P.O. Box 2534, Suite 4649, Jersey City, New
Jersey 07303-2534.
Preferred Stock Purchase Rights
On December 3, 1997, the Board of Directors of the Corporation
declared a dividend of one preferred stock purchase right (a "Right") for each
outstanding share of Common Stock of the Corporation payable to holders of
record as of the close of business on December 15, 1997 (the "Record Date").
Shares of Common Stock issued after the Record Date and prior to the
Distribution Date (as defined below) will be issued with a Right attached so
that all shares of Common Stock outstanding prior to the Distribution Date
will have Rights attached.
Prior to the Distribution Date, the Rights will be evidenced by
the certificates for, and will be transferred with, the Common Stock, and the
registered holders of the Common Stock will be deemed to be the registered
holders of the Rights. After the Distribution Date, the Rights Agent (as
defined below) will mail separate certificates evidencing the Rights to each
record holder of the Common Stock as of the close of business on the
Distribution Date, and thereafter the Rights will be transferable separately
from the Common Stock. The Rights are listed on the New York Stock Exchange.
The "Distribution Date" means the earlier of (i) the 10th day (or such later
day as may be designated by a majority of the Continuing Directors (as defined
below)) after the date (the "Stock Acquisition Date") of the first public
announcement that a person (an "Acquiring Person") (other than the Corporation
or any of its subsidiaries or any employee benefit plan of the Corporation or
any such subsidiary) has acquired beneficial ownership of 15% or more of the
outstanding shares of Common Stock and (ii) the 10th business day (or such
later day as may be designated by a majority of the Continuing Directors)
after the date of the commencement of a tender or exchange offer by any person
which would, if consummated, result in such person becoming an Acquiring
Person.
Prior to the Distribution Date, the Rights will not be
exercisable. After the Distribution Date, each Right will be exercisable to
purchase, for $200 (the "Purchase Price"), one two-hundredths of a share of
Series A Participating Cumulative Preferred Stock, $0.10 par value per share
(the "Series A Preferred Stock"). The terms and conditions of the Rights are
set forth in a Rights Agreement dated as of December 3, 1997 between the
Corporation and First Chicago Trust Company of New York, as Rights Agent.
If any person becomes an Acquiring Person, each Right (other
than Rights beneficially owned by the Acquiring Person and certain affiliated
persons) will entitle the holder to purchase, for the Purchase Price, a number
of shares of Common Stock having a market value of twice the Purchase Price.
If, after any person has become an Acquiring Person, (1) the
Corporation is involved in a merger or other business combination in which the
Corporation is not the surviving corporation or its Common Stock is exchanged
for other securities or assets, or (2) the Corporation or one or more of its
subsidiaries sells or otherwise transfers assets or earning power aggregating
more than 50% of the assets or earning power of the Corporation and its
subsidiaries, taken as a whole, then each Right will entitle the holder to
purchase, for the Purchase Price, a number of shares of common stock of the
other party to such business combination or sale (or in certain circumstances,
an affiliate) having a market value of twice the Purchase Price.
At any time after any person has become an Acquiring Person
(but before any such person becomes the beneficial owner of 50% or more of the
outstanding shares of Common Stock), a majority of the Continuing Directors may
exchange all or part of the Rights (other than Rights beneficially owned by an
Acquiring Person and certain affiliated persons) for shares of Common Stock at
an exchange ratio of one share of Common Stock per Right.
The Board of Directors may redeem all of the Rights at a price
of $.005 per Right at any time prior to the close of business on the 10th day
after the Stock Acquisition Date (or such later date as may be designated by a
majority of the Continuing Directors).
"Continuing Director" means any member of the Board of
Directors who was a member of the Board prior to the time an Acquiring Person
becomes such or 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, an affiliate or
associate of an Acquiring Person or any representative or nominee of the
foregoing.
The Rights will expire on December 15, 2000, unless earlier
exchanged or redeemed.
Preferred Stock
Under its Charter, the Corporation has authorized the issuance
of 300,000 shares of Series A Preferred Stock and has authorized the adoption
of resolutions providing for the issuance, in one or more series, of up to
1,000,000 shares of its Preferred Stock, $0.10 par value, with such powers,
preferences and relative rights and qualifications, limitations or
restrictions thereof as may be adopted by the Board of Directors and permitted
by Tennessee law and the Corporation's Charter. On August 12, 1998, there
were no shares of Preferred Stock outstanding.
The description below sets forth certain general terms and
provisions of the Preferred Stock covered by this Prospectus. The Prospectus
Supplement relating to an offering of Preferred Stock will describe the terms
relevant thereto. The following summaries of certain provisions of the
Preferred Stock do not purport to be complete and are subject to, and are
qualified in their entirety by reference to, the Charter and the resolution of
the Board of Directors authorizing a particular series of Preferred Stock (the
"Series Resolution").
If so indicated in the Prospectus Supplement, the terms of the
Preferred Stock offered thereunder may differ from the terms set forth below,
except those terms required by the Charter.
General
Under the Charter, each series of Preferred Stock of the
Corporation ranks prior to the Common Stock of the Corporation with respect to
both dividends and distribution of assets on liquidation, dissolution or
winding up. The Preferred Stock will, when issued, be fully paid and
non-assessable and the holders thereof will have no preemptive rights.
Reference is made to the Prospectus Supplement relating to an
offering of Preferred Stock for specific terms including:
(i) The designation of the series of Preferred Stock, which may
be by distinguishing number, letter or title;
(ii) The number of shares of such Preferred Stock offered, the
liquidation preference per share and the offering price of such
Preferred Stock;
(iii) The dividend rate or rates of such shares, the date at which
dividends, if declared, will be payable, and whether or not such
dividends are to be cumulative and, if cumulative, the date or dates
from which dividends shall be cumulative;
(iv) The amounts payable on shares of such Preferred Stock in the
event of voluntary or involuntary liquidation, dissolution or winding
up;
(v) The redemption rights and price or prices, if any, for the
shares of such Preferred Stock;
(vi) The terms and amount of any sinking fund or analogous fund
providing for the purchase or redemption of the shares of such
Preferred Stock, if any;
(vii) The voting rights, if any, granted to the holders of the
shares of such Preferred Stock in addition to those required by
Tennessee law or the Charter;
(viii) Whether the shares of Preferred Stock shall be convertible
into shares of the Corporation's Common Stock or any other class of the
Corporation's capital stock, and if convertible, the conversion price
or prices, any adjustment thereof and any other terms and conditions
upon which such conversion shall be made;
(ix) Any other rights, preferences, restrictions, limitations or
conditions relating to the shares of Preferred Stock as may be
permitted by Tennessee law or the Charter;
(x) Any listing of such Preferred Stock on any securities
exchange; and
(xi) A discussion of federal income tax considerations applicable
to such Preferred Stock.
The Charter provides that, subject to any limitations contained
in any outstanding Preferred Stock, the Corporation may issue additional
series of Preferred Stock, at any time or from time to time, with such powers,
preferences, rights and qualifications, limitations or restrictions thereof,
as the Board of Directors shall determine, all without further action of the
shareholders, including holders of then outstanding Preferred Stock of the
Corporation, if any.
Restrictions
If any shares of Series A Preferred Stock are issued by the
Corporation, then for so long as such shares are outstanding, the Corporation
cannot (1) declare or pay a dividend upon, or make a distribution upon, the
Corporation's Common Stock (other than a dividend or distribution payable in
shares of such Common Stock); (2) purchase or redeem shares of Common Stock
without consent of a certain number of holders of the outstanding shares of
Series A Preferred Stock established by the Board of Directors when
authorizing the issuance of such outstanding Preferred Stock; or (3) pay any
money into, or make any money available for, a sinking fund for the purchase
or redemption of any Common Stock, unless in each instance all dividends on
all outstanding shares of Series A Preferred Stock for all past dividend
periods shall have been paid, all dividends for the current dividend period
shall have been declared or paid and sufficient funds for the payment thereof
set apart and any arrears in the mandatory redemption of the Series A Preferred
Stock shall have been made good.
Voting Rights
Holders of the Preferred Stock will have no right to vote for
the election of directors of the Corporation or on any other matter unless a
vote of such class is required by Tennessee law, the Charter or the Series
Resolution.
PLAN OF DISTRIBUTION
The Equity Securities may be sold in any of the following ways:
(1) through underwriters or dealers; (2) through agents; or (3) directly to
one or more purchasers (through a specific bidding or auction process or
otherwise).
The distribution of the Equity Securities may be effected from
time to time in one or more transactions at a fixed price or prices, which may
be changed, or at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices.
In connection with the sale of Equity Securities, underwriters
or agents may receive compensation from the Corporation or from purchasers of
Equity Securities for whom they may act as agents in the form of discounts,
concessions or commissions. Underwriters may sell Equity Securities to or
through dealers, and such dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters or commissions from
the purchasers for whom they may act as agents. If a dealer is utilized to
sell the Equity Securities, the Corporation will sell such Equity Securities
to the dealer as principal. The dealer may then resell such Equity Securities
to the public at varying prices to be determined by such dealer at any time of
resale.
Underwriters, dealers and agents that participate in the
distribution of Equity Securities may be deemed to be underwriters, and any
discounts or commissions received by them from the Corporation and any profit
on the resale of Equity Securities by them may be deemed to be underwriting
discounts and commissions, under the Securities Act. Any such underwriter,
dealer or agent will be identified, and any such compensation received from
the Corporation will be described, in the applicable Prospectus Supplement.
Offers to purchase Equity Securities may be solicited directly
and the sale thereof may be made directly to institutional investors or
others, who may be deemed to be underwriters within the meaning of the
Securities Act with respect to any resale thereof. The terms of any such
sales will be described in the Prospectus Supplement relating thereto,
including the terms of any bidding or auction process.
If so indicated in the Prospectus Supplement, the Corporation
will authorize underwriters, dealers or agents to solicit offers by certain
specified institutions to purchase Equity Securities from the Corporation at
the public offering price set forth in the Prospectus Supplement pursuant to
delayed delivery contracts providing for payment and delivery on a specified
date in the future. Such contracts will be subject only to those conditions
set forth in the Prospectus Supplement and the Prospectus Supplement will set
forth the commission payable for the solicitation of such contracts.
Under agreements which may be entered into by the Corporation,
underwriters, dealers and agents who participate in the distribution of Equity
Securities may be entitled to indemnification by the Corporation against
certain liabilities, including liabilities under the Securities Act or to
contribution with respect to payments which the underwriters, dealers or
agents may be required to make in respect thereof.
Unless otherwise indicated in the applicable Prospectus
Supplement, the Corporation does not intend to apply for the listing of any
series of Preferred Stock on a national securities exchange. If the Preferred
Stock is sold to or through underwriters, the underwriters may make a market
in such stock, as permitted by applicable laws and regulations. No
underwriter would be obligated, however, to make a market in such stock, and
any such market-making could be discontinued at any time at the sole
discretion of the underwriters. Accordingly, no assurance can be given as to
the liquidity of, or trading markets for, the Preferred Stock.
Certain of the underwriters, dealers or agents and their
associates may be customers of, engage in transactions with, and perform
services for, the Corporation in the ordinary course of business.
LEGAL MATTERS
Unless otherwise indicated in the Prospectus Supplement
relating to an offering of Equity Securities, the legality of such Equity
Securities will be passed upon for the Corporation by Jerry Kronenberg, Vice
President, General Counsel and Secretary of the Corporation, and by counsel
for any underwriters, dealers and agents.
EXPERTS
The consolidated financial statements of the Corporation and its
consolidated subsidiaries (except the consolidated financial statements of
Augat Inc. (a wholly-owned subsidiary of the Corporation since December 11,
1996) and subsidiaries as of December 29, 1996 and for each of the two years in
the period ended December 29, 1996) as of December 28, 1997 and for each of the
three years in the period ended December 28, 1997, incorporated in this
Prospectus by reference from the Annual Report on Form 10-K of the Corporation
for year ended December 28, 1997 have been audited by KPMG Peat Marwick LLP as
stated in their report, which is incorporated herein by reference. The
financial statements of Augat Inc. and subsidiaries as of December 29, 1996 and
for each of the two years in the period ended December 29, 1996 (consolidated
with those of the Corporation) have been audited by Deloitte & Touche LLP, as
stated in their report which is incorporated herein by reference. Such
financial statements of the Corporation and its consolidated subsidiaries have
been so incorporated in reliance upon the respective reports of such firms
given upon their authority as experts in accounting and auditing. Both of the
foregoing firms are independent auditors.
=======================================================
No dealer, salesperson or other individual has been
authorized to give any information or to make any
representations not contained in this Prospectus in
connection with the offering covered by this
Prospectus. If given or made, such information or
representations must not be relied upon as having
been authorized by the Corporation or the Initial
Underwriters. This Prospectus does not constitute
an offer to sell, or a solicitation of an offer to buy,
the Securities in any jurisdiction where, or to any
person to whom, it is unlawful to make such offer or
solicitation. Neither the delivery of this Prospectus
nor any sale made hereunder shall, under any
circumstances, create an implication that there has
not been any change in the facts set forth in this
Prospectus or in the affairs of the Corporation since
the date hereof.
-------------
TABLE OF CONTENTS
Page
----
Available Information................................2
Incorporation of Certain
Documents by Reference............................2
Thomas & Betts Corporation...........................3
Use of Proceeds......................................3
Description of Capital Stock.........................3
Plan of Distribution.................................7
Legal Matters........................................8
Experts..............................................8
=======================================================
=======================================================
$600,000,000
[T&B LOGO]
Common Stock
Preferred Stock
--------------
PROSPECTUS
--------------
August __, 1998
=======================================================
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following are the estimated expenses of the issuance and
distribution of the securities (other than underwriting discounts and
commissions) being registered, all of which will be paid by the Registrant:
Registration Fee $177,000
Printing and Engraving 25,000
Fees of Transfer Agent and Registrar 10,000
Attorneys' Fees and Expenses 300,000
Trustees' Fees 10,000
Accounting Fees and Expenses 50,000
Blue Sky Fees and Expenses 1,000
Rating Agency Fees 30,000
New York Stock Exchange Listing Fee 1,500
Miscellaneous 1,000
--------
Total $605,500
========
Item 15. Indemnification of Directors and Officers
In accordance with Section 48-12-102 of the Tennessee Code
Annotated, which permits a Tennessee corporation to include provisions in its
charter limiting the liability of officers and directors, Article VIII of the
Corporation's Amended and Restated Charter provides:
No person who is or was a director of the corporation, or such person's
heirs, executors or administrators, shall be personally liable to the
corporation or its shareholders for monetary damages for breach of
fiduciary duty as a director; provided, however, that this provision
shall not eliminate or limit the liability of any such party (i) for any
breach of a director's duty of loyalty to the corporation or its
shareholders, (ii) for acts or omissions not in good faith or which
involve international misconduct or a knowing violation of law, or (iii)
for unlawful distributions under the Tennessee Business Corporation Act.
Any repeal or modification of the provisions of this Article VIII,
directly or by the adoption of an inconsistent provisions of this
Charter, shall not adversely affect any right or protection in favor of
a particular individual at the time of such repeal or modification.
Sections 48-18-501 through 48-18-509 of the Tennessee Code
Annotated confer broad powers upon corporations incorporated in Tennessee with
respect to indemnification of any person against liabilities incurred by
reason of the fact that he or she is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, trustee, employee or agent of another
enterprise, or the legal representative of any such director, officer, trustee
employee or agent. The provisions of Sections 48-18-501 through 48-18-509 are
not exclusive of any other rights to which those seeking indemnification may
be entitled under any certificate of incorporation, bylaw, agreement, vote of
shareholders or otherwise. Section 48-18-509 also provides that powers
granted pursuant to Sections 48-18-501 through 48-18-509 may be exercised by
the corporation notwithstanding the absence of any provision in its
certificate of incorporation or bylaws authorizing the exercise of such powers.
Article 5 of the Corporation's bylaws provides:
Section 1. Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that
he or she, or a person of whom he or she is the legal representative, is
or was a director or officer of the Corporation or is or was serving at
the request of the Corporation as a director or officer of another
corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans,
whether the basis of such proceeding is alleged action in an official
capacity as a director or officer or in any other capacity while serving
as a director or officer, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized or permitted by the
Tennessee Business Corporation Act, as the same exists or may hereafter
by amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to
provide prior to such amendment), against all expense, liability and
loss (including attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a
director of officer and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that the Corporation
shall indemnify and such person seeking indemnification in connection
with a proceeding (or part thereof) initiated by such person only if
such proceeding (or part thereof) was authorized by the Board of
Directors. The right to indemnification conferred in this Section shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition;
provided, however, that if the Tennessee Business Corporation Act
requires, the payment of such expenses incurred by a director or officer
in his or her capacity as a director or officer (and not in any other
capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to an
employee benefit plan) in advance of the final disposition of a
proceeding, shall be made only upon delivery to the Corporation of an
undertaking, by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this Section
or otherwise.
Section 2. Right of Claimant to Bring Suit. If a claim under Section 1
of this Article is not paid in full by the Corporation within ninety
days after a written claim has been received by the Corporation, the
claimant may at any time thereafter bring suit against the Corporation
to recover the unpaid amount of the claim, and, if successful in whole
or in part, the claimant shall be entitled to be paid also the expense
of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred
in defending any proceeding in advance of its final disposition where
the required undertaking, if any is required, has been tendered to the
Corporation) that the claimant has not met the standards of conduct
which make it permissible under the Tennessee Business Corporation Act
for the Corporation to indemnify the claimant for the amount claimed,
but the burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel, or its shareholders) to have made
a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because
he or she has met the applicable standard of conduct set forth in the
Tennessee Business Corporation Act, nor an actual determination by the
Corporation (including its Board of Directors, independent legal
counsel, or its shareholders) that the claimant has not met such
applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable
standard of conduct.
Section 3. Non-Exclusive of Rights; Continuation of Rights. The right
to indemnification and the payment of expenses incurred in defending a
proceeding in advance of its final disposition conferred in this Article
shall not be exclusive of any other right which any person may have or
hereafter acquire under any statute, provision of the Charter, Bylaw,
agreement, vote of shareholders or disinterested directors or otherwise.
All rights to indemnification under this Article shall be deemed to be a
contract between the Corporation and each director or officer of the
Corporation who serves or served in such capacity at any time while this
Article is in effect. Any repeal or modification of this Article or any
repeal or modification of relevant provisions of the Tennessee Business
Corporation Act or any other applicable laws shall not in any way
diminish any rights to indemnification of such director or officer or
the obligations of the Corporation arising hereunder.
Section 4. Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any director or officer of the
Corporation or another corporation, partnership, joint venture, trust
or other enterprise against any such expense, liability or loss, whether
or not the Corporation would have the power to indemnify such person
against such expense, liability or loss under the Tennessee Business
Corporation Act.
The Corporation has a liability insurance policy in effect,
which covers certain claims against any officer or director of the Corporation
by reason of certain breaches of duty, neglect, errors or omissions committed
by such person in his or her capacity as an officer or director.
Item 16. Exhibits
Exhibit
Number Description of Exhibits
- ------- -----------------------
1(a) Form of Underwriting Agreement relating to Debt Securities.
1(b) Form of Underwriting Agreement relating to Preferred Stock.
1(c) Form of Underwriting Agreement relating to Common Stock.
4(a) Form of Indenture between the Registrant and The Bank of New York, as
Trustee.
4(b) Form of Debt Security (included in Exhibit 4(a)).
4(c) Amended and Restated Charter of Registrant.
4(d) Description of relevant portions of the Registrant's Amended and
Restated Charter defining rights of holders of Common Stock
(incorporated by reference to the Registrant's Report on form 8-B
dated May 2, 1996); Description of the terms and conditions of the
Series A Participating Cumulative Preferred Stock Purchase Rights set
forth in a Rights Agreement dated as of December 3, 1997 between the
Registrant and First Chicago Trust Company of New York, as Rights
Agent (incorporated by reference to the Registrant's Registration
Statement on Form 8-A dated December 12, 1997).
5 Opinion of Jerry Kronenberg, Vice President, General Counsel and
Secretary of Thomas & Betts Corporation, relating to Debt Securities,
Common Stock and Preferred Stock.
12 Computation of Ratio of Earnings to Fixed Charges.
23(a) Consent of Jerry Kronenberg (included in Exhibit 5).
23(b) Consent of KPMG Peat Marwick LLP, independent public accountants.
23(c) Consent of Deloitte & Touche LLP, independent public accountants.
24 Powers of Attorney.
25 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of The Bank of New York.
Item 17. Undertakings
The undersigned Registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule
424(b) under the Securities Act of 1933 if, in the aggregate,
the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, the paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
Registration Statement is on Form S-3, Form S-8 or Form F-3 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Registrant pursuant to section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at the time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) 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 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 therein and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions referred to in Item 15 of
this Registration Statement, or otherwise, the Registrant has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
(d) To file an application for the purpose of determining the
eligibility of the trustee to act under subsection (a) of section 310 of the
Trust Indenture Act of 1939 in accordance with the rules and regulations
prescribed by the Commission under section 305(b)(c) of the Trust Indenture
Act of 1939.
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 Memphis, State of Tennessee, on this
13th day of August 1998.
THOMAS & BETTS CORPORATION
(Registrant)
By: /s/ Fred R. Jones
------------------------------------
Fred R. Jones
Vice President-Finance and Treasurer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the following persons in
the capacities indicated.
Signature Title Date
--------- ----- ----
/s/ Clyde R. Moore* President, Chief Executive
- -------------------------- Officer, (Principal Executive
Clyde R. Moore Officer) and Director
/s/ Fred R. Jones Vice President - Finance and August 13, 1998
- -------------------------- Treasurer (Principal Financial
Fred R. Jones Officer and Principal Accounting
Officer)
/s/ Jerry Kronenberg Vice President - General Counsel August 13, 1998
- -------------------------- and Secretary
Jerry Kronenberg
/s/ Ernest H. Drew* Director
- --------------------------
Ernest H. Drew
/s/ T. Kevin Dunnigan* Chairman and Director
- --------------------------
T. Kevin Dunnigan
/s/ Jeananne K. Hauswald* Director
- --------------------------
Jeananne K. Hauswald
/s/ Thomas W. Jones* Director
- --------------------------
Thomas W. Jones
/s/ Ronald L. Kalich Sr.* Director
- --------------------------
Ronald L. Kalich Sr.
/s/ Robert A. Kenkel* Director
- --------------------------
Robert A. Kenkel
/s/ Kenneth R. Masterson* Director
- --------------------------
Kenneth R. Masterson
/s/ Thomas C. McDermott* Director
- --------------------------
Thomas C. McDermott
/s/ Jean-Paul Richard* Director
- --------------------------
Jean-Paul Richard
- -------------------------- Director
Jerre L. Stead
/s/ William H. Waltrip* Director
- --------------------------
William H. Waltrip
By: /s/ Jerry Kronenberg August 13, 1998
---------------------
Jerry Kronenberg
As attorney-in-fact for the
above-named officers and
directors pursuant to powers
of attorney duly executed by
such persons
EXHIBIT INDEX
Exhibits Exhibit Description
- -------- -------------------
1(a) Form of Underwriting Agreement relating to Debt Securities.
1(b) Form of Underwriting Agreement relating to Preferred Stock.
1(c) Form of Underwriting Agreement relating to Common Stock.
4(a) Form of Indenture between the Registrant and The Bank of New York,
as Trustee.
4(b) Form of Debt Security (included in Exhibit 4(a)).
4(c) Amended and Restated Charter of Registrant.
4(d) Description of relevant portions of the Registrant's Amended and
Restated Charter defining rights of holders of Common Stock
(incorporated by reference to the Registrant's Report on form 8B
dated May 2, 1996); Description of the terms and conditions of the
Series A Participating Cumulative Preferred Stock Purchase Rights
set forth in a Rights Agreement dated as of December 3, 1997 between
the Registrant and First Chicago Trust Company of New York, as
Rights Agent (incorporated by reference to the Registrant's
Registration Statement on Form 8-A dated December 12, 1997).
5 Opinion of Jerry Kronenberg, Vice President, General Counsel and
Secretary of Thomas & Betts Corporation, relating to Debt
Securities, Common Stock and Preferred Stock.
12 Computation of Ratio of Earnings to Fixed Charges.
23(a) Consent of Jerry Kronenberg (included in Exhibit 5).
23(b) Consent of KPMG Peat Marwick LLP, independent public accountants.
23(c) Consent of Deloitte & Touche LLP, independent public accountants.
24 Powers of Attorney.
25 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of The Bank of New York.
Exhibit 1(a)
Terms Agreement
(Attaching Underwriting Agreement Basic Provisions)
Dated as of
______________, 199__
between
THOMAS & BETTS CORPORATION
and
[Underwriters]
Debt Securities
THOMAS & BETTS CORPORATION
[ ]% [Notes] [Debentures] due [ ]
Terms Agreement
________ __, 199_
Thomas & Betts Corporation
8155 T&B Boulevard
Memphis, Tennessee 38125
Ladies and Gentlemen:
We understand that Thomas & Betts Corporation (the "Company")
proposes to issue and sell $_____________ aggregate principal amount of its
[ ]% [Notes] [Debentures] due ____ (the "Offered Securities"). Subject to
the terms and conditions set forth or incorporated by reference herein, the
underwriters named below (the "Underwriters") offer to purchase, severally and
not jointly, the principal amount of Offered Securities set forth below
opposite their respective names at the purchase price set forth below.
Principal Amount Underwriting Proceeds
of Discounts and to the
Underwriters Offered Securities Commissions Company
- ------------------- -------------------- --------------- ----------
________________... $_____________ % $_____
________________... $_____________ % $_____
Total........ $_____________ $_________ $_____
The Offered Securities shall have the following terms:
Title of Offered Securities: [ ]% [Notes] [Debentures] due _______
Principal amount to be issued: $___________________
Public offering price: [100]%, plus accrued interest from ___________, ______
Purchase price: [ ]% plus accrued interest from ______ (payable in same day
funds)
Current ratings: Moody's Investors Service, Inc. [ ];
Standard & Poor's Corporation [ ]
Interest Rate: [ ]%
Interest Payable: ____ and _____, commencing _____, ____
Closing date, time and
location: ____________, ______, 10:00 A.M., New York City time
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
Location for checking
Offered Securities: New York, New York
Wire Transfer of Funds in Settlement:
Listing requirement: [None]
Date of maturity:
Redemption or repayment provisions:
Sinking fund requirements:
Number of Option Securities, if any, that may be
purchased by the Underwriters:
Other terms and conditions:
The Offered Securities will be issued in fully registered,
book-entry only form through the facilities of The Depository
Trust Company, and each issue of the Offered Securities shall be
represented by a separate global security.
Exceptions, if any, to Section 3(i) of the
Underwriting Agreement Basic Provisions:
All provisions contained in the document attached as Annex A
hereto entitled "Thomas & Betts Corporation -- Debt Securities -- Underwriting
Agreement Basic Provisions" (the "Basic Provisions") are hereby incorporated by
reference in their entirety herein and shall be deemed to be a part of this
Terms Agreement to the same extent as if such provisions had been set forth in
full herein. For purposes of the Basic Provisions, references to the
"Representative" shall be deemed to refer ______________________. Terms
defined in the Basic Provisions are used herein as therein defined.
Please accept this offer by signing a copy of this Terms
Agreement in the space set forth below and returning the signed copy to us.
Very truly yours,
[UNDERWRITERS]
By: ____________________________
Name:
Title:
Acting on behalf of themselves and the
other named Underwriters
Accepted:
THOMAS & BETTS CORPORATION
By: _____________________________
Name:
Title:
August __, 1998
Annex A
---------------
THOMAS & BETTS CORPORATION
(a Tennessee Corporation)
Debt Securities
UNDERWRITING AGREEMENT BASIC PROVISIONS
---------------------------------------
Thomas & Betts Corporation (the "Company"), proposes to issue
and sell up to $600 million aggregate principal amount of its debt securities
(the "Debt Securities") from time to time on terms to be determined at the
time of sale (the "Offered Securities"). The Debt Securities will be issued
under an indenture dated as of August 1, 1998 (the "Indenture") between the
Company and The Bank of New York, acting not in its individual capacity, but
solely as trustee (the "Trustee"). Each issue of Debt Securities may vary, as
applicable, as to aggregate principal amount, maturity date, currency,
interest rate or formula and timing of payments thereof, any redemption or
sinking fund requirements and any other variable terms as the Indenture
contemplates and as may be set forth in the Debt Securities issued from time
to time.
This is to confirm the arrangements with respect to the
purchase of Offered Securities from the Company by the Representative and the
several Underwriters listed in the applicable terms agreement entered into
between the Representative and the Company of which this Underwriting
Agreement is Annex A thereto (the "Terms Agreement"). With respect to any
particular Terms Agreement, the Terms Agreement, together with the provisions
hereof incorporated therein by reference, is herein referred to as the
"Agreement". Terms defined in the Terms Agreement are used herein as therein
defined.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-________) for the registration of certain debt securities and other
securities, including the Offered Securities, under the Securities Act of
1933, as amended (the "1933 Act"), and the offering thereof from time to time
in accordance with Rule 415 of the rules and regulations of the Commission
under the 1933 Act (the "1933 Act Regulations") and has filed such amendments
thereto as may have been required to the date of the Term Agreement. Such
registration statement, as amended, has been declared effective by the
Commission and the Indenture has been qualified under the Trust Indenture Act
of 1939, as amended (the "1939 Act").
The Company has, pursuant to Rule 424 under the 1933 Act, filed
with, or transmitted for filing to, or shall within the required period of
time hereafter file with or transmit for filing to, the Commission a
prospectus supplement (the "Prospectus Supplement") specifically relating to
the Offered Securities, together with a revised and restated prospectus
relating to debt securities covered by the above-referenced registration
statement.
The term "Registration Statement" refers to such registration
statement in the form in which it became effective, including the exhibits
thereto and the documents incorporated by reference therein, as amended to the
date hereof. The term "Basic Prospectus" means the above-referenced revised
and restated prospectus relating to debt securities. The term "Prospectus"
means the Basic Prospectus supplemented by the Prospectus Supplement. The
term "Preliminary Prospectus" means a preliminary prospectus supplement
specifically relating to the Offered Securities together with the Basic
Prospectus. As used herein, the terms "Basic Prospectus," "Prospectus" and
"Preliminary Prospectus" shall include in each case the documents, if any,
incorporated by reference therein. The terms "supplement" and "amendment" or
"amend" as used herein shall include all documents deemed to be incorporated
by reference in the Prospectus that have been filed subsequent to the date of
the Basic Prospectus by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act").
If the Company has filed an abbreviated registration statement
to register additional shares of Debt Securities pursuant to Rule 462(b) under
the 1933 Act, then any reference herein to the term "Registration Statement"
shall include such Rule 462(b) registration statement.
Capitalized terms used but not otherwise defined in this
Agreement shall have the meanings specified in or pursuant to the Indenture.
Section 1. Representations and Warranties of the Company.
(a) The Company represents and warrants to the Representative and
to each Underwriter named in a Terms Agreement, as of the date thereof (the
"Representation Date"), as follows:
(i) Due Incorporation and Qualification. The
Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of
Tennessee, has the corporate power and authority to own, lease
and operate its properties and to conduct its business as
described in the Prospectus; and is duly qualified to do business
and is in good standing in each jurisdiction in which such
qualification is required, except where the failure to so qualify
would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered
as one enterprise.
(ii) Subsidiaries. Each subsidiary of the Company
which is a significant subsidiary as defined in Rule 405 of
Regulation C of the 1933 Act Regulations (each a "Significant
Subsidiary") has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus and is duly qualified
as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is
required, except where the failure to so qualify would not have a
material adverse effect on the condition, financial or otherwise,
or the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise; and
all of the issued and outstanding capital stock of each
Significant Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and, except for
directors' qualifying shares (except as otherwise stated in the
Registration Statement), is owned by the Company, directly or
through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(iii) Registration Statement and Prospectus. The
Registration Statement and the Prospectus, at the time the
Registration Statement became effective and as of the applicable
Representation Date, complied in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the
1939 Act and the rules and regulations of the Commission
promulgated thereunder. The Registration Statement, at the time
it became effective and as of the applicable Representation Date,
did not and will not, contain an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading. The Prospectus, at the time the Registration
Statement became effective and as of the applicable
Representation Date, did not, and will not, contain an 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;
provided, however, that the representations and warranties in
this subsection shall not apply to statements in or omissions
from the Registration Statement or Prospectus made in reliance
upon and in conformity with information furnished to the Company
in writing by an Underwriter expressly for use in the
Registration Statement or Prospectus or to those parts of the
Registration Statement which constitutes a Statement of
Eligibility and Qualification of Trustee (Form T-1) under the
1939 Act.
No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
initiated or threatened by the Commission.
(iv) Incorporated Documents. The documents
incorporated by reference in the Prospectus, at the time they
were or hereafter are filed with the Commission, complied and
will comply in all material respects with the requirements of the
1934 Act and the rules and regulations promulgated thereunder
(the "1934 Act Regulations"), and, when read together and with
the other information in the Prospectus, did not and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances
under which they were or are made, not misleading.
(v) Accountants. The accountants who certified the
financial statements included or incorporated by reference in the
Prospectus are independent public accountants as required by the
1933 Act and the 1933 Act Regulations.
(vi) Financial Statements. The financial statements
of the Company included or incorporated by reference in the
Prospectus and the Registration Statement present fairly the
financial position of the Company as of the dates thereof and the
results of operations, changes in common stockholders' investment
and cash flows of the Company, for the respective periods covered
thereby, all in conformity with generally accepted accounting
principles applied on a consistent basis throughout the entire
period involved; and the financial schedules included or
incorporated by reference in the Registration Statement meet the
requirements of the 1933 Act Regulations or the 1934 Act
Regulations, as applicable.
(vii) Material Changes or Material Transactions.
Except as stated in the Prospectus, subsequent to the respective
dates as of which information is given in the Registration
Statement and the Prospectus, the Company has not incurred any
liabilities or obligations, direct or contingent, or entered into
any transactions which are material to the Company, and there has
not been any material adverse change in the capital stock or
short-term debt, or any material increase in long-term debt of
the Company, or any material adverse change, or any development
involving a prospective material adverse change, in the condition
(financial or other), business, prospects, net worth or results
of operations of the Company and its subsidiaries considered as
one entity.
(viii) No Defaults; Regulatory Approvals. Neither the
Company nor any of its subsidiaries is in violation of its
charter or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, loan agreement, note, lease
or other instrument to which it is a party or by which it or any
of them or their properties may be bound.
The execution and delivery of this Agreement and the Indenture
and the consummation of the transactions contemplated herein and therein have
been duly authorized by all necessary corporate action and executed by the
Company and will not conflict with or constitute a breach of, or default under,
or result in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of its subsidiaries pursuant to,
any contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any such subsidiary is a party or by which
it or any of them may be bound or to which any of the property or assets of
the Company or any such subsidiary is subject, which conflict, breach or
default would have, individually or in the aggregate with any other such
instances, a material adverse effect on the condition (financial or other),
business, prospects, net worth or results of operations of the Company and its
subsidiaries considered as one entity, nor will such action result in any
material violation of the provisions of the charter or by-laws of the Company
or any law, administrative regulation or administrative or court order or
decree currently in effect or in effect at the time of execution and delivery
of this Agreement and the Indenture and applicable to the Company or any of its
subsidiaries.
No consent, approval, authorization, order or decree of any
court or governmental agency or body is required for the consummation by the
Company of the transactions contemplated by this Agreement or the Indenture,
except such as may be required under the 1933 Act, the 1939 Act and the 1933
Act Regulations or state securities or Blue Sky laws.
(ix) Legal Proceedings; Contracts. Except for matters
described in the Prospectus (as to which the Company can express
no opinion at this time concerning the Company's liability (if
any) or the effect of any adverse determination upon the
business, condition (financial or otherwise) or operations of the
Company), there is no pending, or to the best knowledge of any
financial officer of the Company, threatened action or proceeding
before any court or administrative agency which individually (or
in the aggregate in the case of any group of related lawsuits) is
expected to have a material adverse effect on the financial
condition of the Company or the ability of the Company and its
subsidiaries considered as one entity to perform its obligations
under the Indenture.
(x) Compliance with Laws. The Company's business and
operations comply in all material respects with all laws and
regulations applicable thereto and there are no known, proposed
or threatened changes in any laws or regulations which would have
a material adverse effect on the Company or the manner in which
it conducts its business. The Company possesses all valid and
effective certificates, licenses and permits required to conduct
its business as now conducted, except for instances which
individually or in the aggregate do not, or will not, have a
material adverse effect on the condition (financial or other),
business, prospects or results of operations of the Company and
its subsidiaries considered as one entity.
(xi) Enforceability. The Indenture has been duly
authorized by the Company, will be substantially in the form
heretofore supplied to the Representative and each Underwriter
and, when duly executed and delivered by the Company and the
other parties thereto, will constitute a valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms.
(xii) Validity of the Offered Securities. When
executed, issued, authenticated and delivered pursuant to the
provisions of the Indenture and sold and paid for as provided in
this Agreement, each thereof Offered Securities will constitute
valid and legally binding obligations of the Company enforceable
in accordance with their terms; and the Holders of such Offered
Securities will be entitled to the benefits provided by such
Indenture.
The representations and warranties made by the Company as to the
enforceability of the Indenture and the Offered Securities, set forth in
subparagraphs (xi) and (xii) above are limited by bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
enforcement of creditors' rights or by general equity principles, and the
enforceability of the Indenture is also limited by applicable laws which may
affect the remedies provided therein but which do not affect the validity of
such Indenture or make such remedies inadequate for the practical realization
of the benefits intended to be provided thereby.
(b) Additional Certifications. Any certificate signed by any
officer of the Company and delivered to the Representative and counsel for the
Underwriters in connection with an offering of the Offered Securities shall be
deemed a representation and warranty by the Company to each Underwriter
participating in such offering as to the matters covered thereby on the date of
such certificate unless subsequently amended or supplemented subsequent
thereto.
Section 2. Purchase and Sale. (a) The obligations of the
Underwriters to purchase, and the Company to sell, the Offered Securities
shall be evidenced by the Term Agreement. The Terms Agreement specifies the
principal among of the Offered Securities, the names of the Underwriters
participating in the offering and the principal amount of Offered Securities
which each Underwriter severally has agreed to purchase, the purchase price
to be paid by the Underwriters for the Offered Securities, the public offering
price and any terms of the Offered Securities not already specified (including,
but not limited to, designations, denominations, current ratings, interest
rates or formulas and payment dates, maturity dates, listing requirements,
redemption and repayment provisions and sinking fund requirements).
The several commitments of the underwriters to purchase Offered
Securities pursuant to the Terms Agreement shall be deemed to have been made
on the basis of the representations and warranties herein contained and shall
be subject to the terms and conditions herein set forth.]
(b) Subject to the terms and conditions herein set forth, the
Company may grant, if so provided in the Terms Agreement relating thereto, an
option to the Underwriters, severally and not jointly, to purchase additional
Debt Securities to cover over-allotments, if any (the "Option Securities").
If the Terms Agreement so provides, the Underwriters may purchase up to the
amount of Option Securities set forth therein at the same price as is
applicable to the Offered Securities. As used herein, the term "Offered
Securities" shall include Option Securities. Such option, if granted, will
expire 30 days after the date of this Agreement, and may be exercised in whole
or in part from time to time only for the purpose of covering over-allotments
which may be made in connection with the offering and distribution of the
Offered Securities upon notice by the Representative to the Company setting
forth the number of Option Securities as to which the several Underwriters are
then exercising the option and the time and date of payment and delivery for
such Option Securities.
Any such time and date of delivery shall be determined by the
Representative, but shall not be later than four business days and not be
earlier that two business days after the exercise of said option, nor in any
event prior to Closing Time, unless otherwise agreed upon by the
Representative and the Company.
If the option is exercised as to all or any portion of the
Option Securities, each Underwriter, acting severally and not jointly, will
purchase that proportion of the total number of Option Securities then being
purchased which the number of Offered Securities each such Underwriter has
agreed to purchase as set forth in the Terms Agreement bears to the total
number of Offered Securities, subject to such adjustments as the
Representative shall make to eliminate any sales or purchases of fractional
Debt Securities.
(c) Payment of the purchase price for any Offered Securities to be
purchased by the Underwriters shall be made to the Company at either the
Company's offices in Memphis, Tennessee or the office of Davis Polk &
Wardwell, 450 Lexington Avenue, New York, New York 10017, or at such other
place as shall be agreed upon by the Representative and the Company, at 10:00
A.M., New York City time, on the third business day (unless postponed in
accordance with the provisions of Section 10) following the date of the Terms
Agreement or at such other date, time or location specified in the Terms
Agreement, or as otherwise shall be agreed upon by the Representative and the
Company (such time and date being referred to as a "Closing Time").
Delivery of the Offered Securities shall be made for the
account of the Underwriters as specified in the Terms Agreement against
payment by such Underwriters of the purchase price thereof to the Company (or
such other person as the Company may direct) by wire transfer of immediately
available funds. Unless otherwise indicated in the Terms Agreement, such
Offered Securities shall be registered in the name of Cede & Co., as nominee
for The Depository Trust Company, and in such denominations, as the
Representative may request in writing at least two business days prior to the
Closing Time. Such Offered Securities will be made available for examination
and packaging by the Representative in New York, New York, on or before the
first business day prior to the Closing Time or at such other time and place
specified in the Terms Agreement.
Section 3. Covenants of the Company.
The Company covenants with the Representative and with each
other Underwriter as follows:
(a) Prospectus Supplement. Immediately following the execution of
this Agreement, the Company will prepare a Prospectus Supplement in connection
with the offering of the Offered Securities. The Company will promptly
transmit copies of the Prospectus Supplement to the Commission for filing
pursuant to Rule 424 of the 1933 Act Regulations.
(b) Notice of Certain Events. The Company will notify the
Representative promptly (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the transmittal to the Commission for filing of
any supplement to the Prospectus or any document to be filed pursuant to the
1934 Act which will be incorporated by reference in the Prospectus, (iii) of
the receipt of any comments from the Commission with respect to the
Registration Statement, the Prospectus or the Prospectus Supplement relating
in any way to the offer and sale of the Offered Securities, (iv) of any
request by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectus or for additional information,
and (v) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose.
(c) Notice of Certain Proposed Filings. The Company will give the
Representative notice of its intention to file or prepare any amendment to the
Registration Statement or any amendment or supplement to the Prospectus, and
will furnish the Representative with copies of any such amendment or
supplement or other documents proposed to be filed or prepared a reasonable
time in advance of such proposed filing or preparation, as the case may be.
(d) Copies of the Registration Statement and the Prospectus. The
Company will deliver to the Representative as many signed and conformed copies
of the Registration Statement (as originally filed) and of each amendment
thereto (including exhibits filed therewith or incorporated by reference
therein and documents incorporated by reference in the Prospectus) as the
Representative may reasonably request. The Company will furnish to the
Representative as many copies of the Prospectus (as amended or supplemented)
as the Representative shall reasonably request so long as the Underwriters are
required to deliver a Prospectus in connection with sales or solicitations of
offers to purchase the Offered Securities.
(e) Revisions of Prospectus -- Material Changes. If at any time
when the Prospectus is required by the 1933 Act to be delivered in connection
with sales of the Offered Securities any event shall occur or condition exist
as a result of which it is necessary, in the reasonable opinion of counsel for
the Company, to further amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the reasonable
opinion of such counsel, at any such time to amend or supplement the
Registration Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations the Company will
promptly prepare and file with the Commission such amendment or supplement,
whether by filing documents pursuant to the 1934 Act, the 1933 Act or
otherwise, as may be necessary to correct such untrue statement or omission or
to make the Registration Statement and Prospectus comply with such
requirements.
(f) Earnings Statements. The Company will make generally available
to its security holders as soon as practicable after the close of the period
covered thereby, an earnings statement (in form complying with the provisions
of Rule 158 under the 1933 Act) covering each twelve-month period beginning,
in each case, not later than the first day of the Company's fiscal quarter
next following the "effective date" (as defined in such Rule 158) of the
Registration Statement with respect to each sale of Offered Securities.
(g) Blue Sky Qualifications. The Company will endeavor, in
cooperation with the Underwriters, to qualify the Offered Securities for
offering and sale under the applicable securities laws of such states and other
jurisdictions of the United States as the Underwriters may designate, and will
maintain such qualifications in effect for so long as may be required for the
distribution of the Offered Securities; provided, however, that the Company
shall not be obligated to file any general consent to service of process or to
qualify as a foreign corporation or to subject itself to taxation as doing
business in any jurisdiction in which it is not otherwise required to be so
qualified. The Company will file such statements and reports as may be
required by the laws of each jurisdiction in which the Offered Securities have
been qualified as provided above.
(h) 1934 Act Filings. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file promptly
all documents required to be filed with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the 1934 Act.
(i) Stand-Off Agreement. The Company will not, between the date of
the Terms Agreement and the Closing Time, without the consent of the
Representative, offer or sell, or enter into any agreement to sell, any debt
securities of the Company pursuant to a public offering of securities
registered under the 1933 Act (other than the Offered Securities which are to
be sold pursuant hereto and commercial paper in the ordinary course of
business).
Section 4. Payment of Expenses.
The Company will pay all expenses incident to the performance
of its obligations under this Agreement, including:
(i) the preparation and filing of the
Registration Statement and all amendments thereto, the
Preliminary Prospectus, if any, and the Prospectus and any
amendments or supplements thereto;
(ii) the filing of this Agreement;
(iii) the preparation, issuance and delivery of the
Offered Securities;
(iv) the reasonable fees and disbursements of the
Company's accountants and counsel, of the Trustee and its
counsel, and of any registrar, paying agent and authenticating
agent;
(v) the qualification of the Offered Securities
under securities laws in accordance with the provisions of
Section 3(g), including filing fees and the reasonable fees and
disbursements of counsel to the Underwriters in connection
therewith and in connection with the preparation of any Blue Sky
Survey;
(vi) the printing and delivery to the
Underwriters in quantities as hereinabove stated of copies of the
Registration Statement and any amendments thereto, and of the
Prospectus and any amendments or supplements thereto, and the
delivery by the Underwriters of the Prospectus and any amendments
or supplements thereto in connection with solicitations or
confirmations of sales of the Offered Securities;
(vii) the preparation and delivery to the
Underwriters of copies of the Indenture; and
(viii) any fees charged by rating agencies for the
rating of the Offered Securities.
If this Agreement is terminated by the Representative in
accordance with the provisions of Section 5 or clause (i) of Section 9 hereof,
the Company shall reimburse upon demand the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters that shall have been incurred by the Underwriters
in connection with the proposed purchase and sale of the Offered Securities.
Section 5. Conditions of Underwriters' Obligations.
The several obligations of the Underwriters to purchase the
Offered Securities pursuant to the Terms Agreement will be subject at all
times to the accuracy of the representations and warranties on the part of the
Company herein, to the accuracy of the statements of the Company's officers
made in any certificate furnished pursuant to the provisions hereof, to the
performance and observance by the Company of all covenants and agreements
contained herein or in the Terms Agreement, on its part to be performed and
observed and to the following additional conditions precedent:
(a) Stop Order; Ratings Change; etc. At the Closing Time, (i) no
stop order suspending the effectiveness of the Registration Statement shall
have been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, (ii) the rating assigned as of the date of this
Agreement by any "nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g) under the 1933 Act
Regulations, to any debt securities of the Company (including for purposes of
this Section 5(a)(ii) any rating indicated by the Company as of the date of
this Agreement as the rating orally confirmed to the Company by any such
rating organization as the rating to be assigned to the Offered Securities)
shall not have been lowered since the execution of this Agreement nor shall
any such rating organization have publicly announced that it has placed any
debt securities of the Company on what is commonly termed a "watch list" for
possible downgrading, and (iii) there shall not have come to the attention of
the Representative any facts that would cause the Representative to believe
that the Prospectus, including the Prospectus Supplement, at the time it was
required to be delivered to a purchaser of the Offered Securities, contained
an untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances existing at such time, not misleading.
(b) Legal Opinions. At the Closing Time, the Representative shall
have received the following documents:
(1) Opinion of Company Counsel. The opinion of the Vice
President-General Counsel and Secretary of the Company or the Assistant
Secretary and Corporate Counsel of the Company, dated as of such date, in form
and substance reasonably satisfactory to the Representative, to the effect as
set forth in Exhibit A.
(2) Opinion of Counsel to the Underwriters. The opinion of
__________________________________, counsel to the Underwriters, with respect
to such matters as the Representative may reasonably request.
(c) Officer Certificate. At the Closing Time, there shall not have
been, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change in the
condition (financial or otherwise) of the Company, or in the earnings or
business affairs of the Company; and the Representative shall have received a
certificate of any Vice President of the Company, dated as of the Closing
Time, to the effect (i) that there has been no such material adverse change,
(ii) that the other representations and warranties of the Company contained in
Section 1 are true and correct in all material respects with the same force and
effect as though expressly made at and as of the date of such certificate,
except to the extent that such representations and warranties expressly relate
to an earlier date or later date (in which case such representations and
warranties are true and correct on and as of such earlier date or will be true
and correct on and as of such later date, as the case may be), (iii) that the
Company has made or caused to be made any required filing of the Prospectus
pursuant to Rule 424(b) in the manner and within the time period required by
Rule 424(b), and (iv) that the Company has complied with all material
agreements and satisfied all material conditions on its part to be performed
or satisfied at or prior to the date of such certificate. The officer signing
and delivering this certificate may rely upon the best of his or her knowledge
as to proceedings threatened.
(d) Comfort Letter. At the time of the execution of the Terms
Agreement and at the Closing Time, the Representative shall have received a
letter from KPMG Peat Marwick LLP or their successors as the Company's
independent accountants (the "Independent Accountants"), dated as of the date
of the Terms Agreement and of the Closing Time, as the case may be, in form
and substance satisfactory to the Representative to the effect that:
(i) they are independent public accountants within the
meaning of the 1933 Act and the 1933 Act Regulations;
(ii) in their opinion the Company's financial statements and
schedules included or incorporated by reference in the
Registration Statement and Prospectus and covered by their
reports included or incorporated therein comply as to form in all
material respects with the applicable accounting requirements of
the 1933 Act and the 1933 Act Regulations or the 1934 Act and the
1934 Act Regulations, as the case may be;
(iii) they have conducted reviews of the unaudited interim
consolidated financial information of the Company included in the
Company's Quarterly Reports on Form 10-Q incorporated in the
Registration Statement and Prospectus in compliance with the
standards for such reviews promulgated by the American Institute
of Certified Public Accountants;
(iv) on the basis of a reading of the financial statements
and schedules of the Company included or incorporated in the
Prospectus and the Registration Statement, and the latest
available unaudited interim financial statements of the Company,
inquiries of officials of the Company responsible for financial
and accounting matters, and other specified procedures and
inquiries, nothing has come to their attention that caused them
to believe that:
(A) the unaudited financial statements of the Company
included or incorporated in the Prospectus and the
Registration Statement do not comply as to form in all
material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations or
the 1934 Act and the 1934 Act Regulations thereunder, as the
case may be, or that such unaudited financial statements are
not presented fairly in conformity with generally accepted
accounting principles;
(B) with respect to the period subsequent to the date
of the most recent financial statements incorporated in the
Registration Statement and the Prospectus, as of a specified
date not more than five business days prior to the date of
delivery of such letter, there has been any change in the
common or preferred stock or long-term debt of the Company
or, as of such date, there has been any decrease in assets
or common stockholders' investment, in each case as compared
with amounts shown in the most recent consolidated balance
sheet of the Company included or incorporated in the
Registration Statement and the Prospectus, except in each
case for changes or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter; or
(C) for the period from the date of the most recent
financial statements incorporated in the Registration
Statement and the Prospectus to such specified date, there
was any decrease in operating revenues, operating income,
income before taxes or net income of the Company in each
case as compared with the comparable period of the preceding
year, except in each case for decreases which the Prospectus
discloses have occurred or may occur or which are described
in such letter; and
(v) in addition to their audit referred to in their reports
included or incorporated by reference in the Registration
Statement and the Prospectus and the reviews, inquiries and
procedures referred to in clauses (iii) and (iv) above, such
letter shall state that KPMG Peat Marwick LLP has performed other
specified procedures, with respect to certain numerical data and
information included or incorporated in the Registration
Statement and the Prospectus, as are requested by the
Representative and specified in such letter and have found such
data and information to be in agreement with the accounting
records of or analyzes prepared by the Company.
(e) Other Documents. At the Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as
such counsel may reasonably require for the purpose of enabling such counsel
to pass upon the issuance and sale of Offered Securities as herein contemplated
and related proceedings, or in order to evidence the accuracy and completeness
of any of the representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of Offered Securities as herein
contemplated shall be satisfactory in form and substance to the
Representative.
Section 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, arising out of any untrue statement of a
material fact contained in the Registration Statement (or any
amendment thereto), or the omission therefrom of a material fact
required to be stated therein or necessary to make the statements
therein not misleading or arising out of or based upon any untrue
statement of a material fact contained in the Prospectus (or any
amendment or supplement thereto) or the omission therefrom of a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or of
any claim whatsoever arising out of or based upon any such untrue
statement or omission, if such settlement is effected with the
written consent of the Company; and
(iii) against any and all expense whatsoever, reasonably
incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever
arising out of or based upon any such untrue statement or
omission, to the extent that any such expense is not paid under
(i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representative expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto),
or made in reliance upon the Statement of Eligibility and Qualification of
Trustee (Form T-1) under the 1939 Act filed as exhibits to the Registration
Statement; and provided, further, that the foregoing indemnity agreement, with
respect to any Preliminary Prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased Offered Securities, or any person controlling such
Underwriter, if a copy of the Prospectus (as then amended or supplemented if
the Company shall have furnished any amendments or supplements thereto) was not
sent or given by or on behalf of such Underwriter to such person, if required
by law so to have been delivered, at or prior to the written confirmation of
the sale of the Offered Securities to such person, and if the Prospectus (as so
amended or supplemented) would have cured the defect giving rise to such
losses, claims, damages or liabilities.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions made in the Registration
Statement (or any amendment thereto) or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriters through the
Representative expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of such action. In no
event shall the indemnifying parties be liable for the fees and expenses of
more than one counsel (in addition to any local counsel) separate from their
own counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances.
Section 7. Contribution.
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 6 is
for any reason held to be unenforceable by the indemnified parties although
applicable in accordance with its terms, the Company and the Underwriters of
each offering of Offered Securities shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Company and one or more of the
Underwriters in respect of such offering, as incurred, in such proportions
that the Underwriters are responsible for that portion represented by the
percentage that the underwriting discount appearing on the cover page of the
Prospectus in respect of such offering bears to the initial public offering
price appearing thereon and the Company is responsible for the balance;
provided, however, that no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section, each person, if any, who controls
an Underwriter within the meaning of Section 15 of the 1933 Act shall have the
same rights to contribution as such Underwriter, and each director of the
Company, each officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act shall have the same rights to contribution as the
Company.
Section 8. Representations, Warranties and Agreements to
Survive Delivery.
All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company, and shall survive each
delivery of and payment for any of the Offered Securities.
Section 9. Termination of Agreement.
The Representative may terminate this Agreement, immediately
upon notice to the Company, at any time prior to the Closing Time if: (i)
there has been, since the date hereof or since the respective dates as of which
information is given in the Registration Statement, any material adverse change
in the condition, financial or otherwise, or in the earnings or business
affairs of the Company, (ii) there shall have occurred any material adverse
change in the financial markets in the United States or any outbreak or
escalation of hostilities or other national or international calamity or
crisis, the effect of which shall be such as to make it, in the judgment of
the Representative, impracticable to market the Offered Securities or enforce
contracts for the sale of the Offered Securities, or (iii) trading in any
securities of the Company shall have been suspended by the Commission or a
national securities exchange, or if trading generally on either the American
Stock Exchange or the New York Stock Exchange shall have been suspended, or
minimum or maximum prices for trading shall have been fixed, or maximum ranges
for prices for securities shall have been required, by either of said
exchanges or by order of the Commission or any other governmental authority,
or if a banking moratorium shall have been declared by either federal or New
York authorities.
In the event of any termination of this Agreement, the covenant
set forth in Section 3(f) hereof, the provisions of Section 4 hereof, the
indemnity and contribution agreements set forth in Sections 6 and 7 hereof,
and the provisions of Sections 8 and 13 hereof shall remain in effect.
Section 10. Default by One Underwriter.
If any Underwriter shall fail at the Closing Time to purchase
the Offered Securities which it is obligated to purchase hereunder (the
"Defaulted Securities"), and the aggregate amount of Defaulted Securities is
not more than one-tenth of the aggregate amount of the Offered Securities to be
purchased on such date, the other Underwriters shall be obligated severally in
the proportions that the amount of the Offered Securities set forth opposite
their respective names in Schedule I hereto bears to the aggregate amount of
Offered Securities set forth opposite the names of all such non-defaulting
underwriters to purchase the Defaulted Securities; provided that in no event
shall the amount of Defaulted Securities that any Underwriter has agreed to
purchase pursuant to this Agreement be increased by an amount in excess of
one-ninth of such amount of Offered Securities without the written consent of
such Underwriter. If the aggregate amount of Defaulted Securities is more
than one-tenth of the aggregate amount of the Offered Securities to be
purchased on the Closing Date, and arrangements satisfactory to the
Underwriters and the Company for the purchase of such Defaulted Securities are
not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriters or the
Company.
No action taken pursuant to this Section shall relieve a
defaulting Underwriter from liability in respect of its default under this
Agreement.
In the event of any such default which does not result in a
termination of this Agreement, either the non-defaulting Underwriters or the
Company shall have the right to postpone the Closing Time for a period not
exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or arrangements.
Section 11. Notices.
All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed, delivered by an
express courier service or transmitted by any facsimile communication.
Notices to the Underwriters shall be directed to the Representative at the
address specified in the Terms Agreement, with copies thereof directed to
[Designated Underwriters counsel]. Notices to the Company shall be directed
to it at 8155 T&B Boulevard, Memphis, Tennessee 38125, Attention: Vice
President-Finance and Treasurer, with copies thereof directed to the Legal
Department of the Company at 8155 T&B Boulevard, Memphis, Tennessee 38125,
Attention: Vice President-General Counsel and Secretary.
Section 12. Parties.
This Agreement shall inure to the benefit of and be binding
upon the Company and any Underwriter who becomes a party hereto and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the parties hereto and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the parties hereto their respective successors
and said controlling persons and officers and directors and their heirs and
legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Offered Securities from any Underwriter shall be
deemed to be a successor by reason merely of such purchase.
Section 13. Governing Law.
This Agreement and the rights and obligations of the parties
created hereby and thereby shall be governed by and construed in accordance
with the laws of the State of New York applicable to agreements made and to be
performed in such state. Any suit, action or proceeding brought by the
Company against an Underwriter in connection with or arising under this
Agreement shall be brought solely in the state or federal court of appropriate
jurisdiction located in the Borough of Manhattan, The City of New York.
Exhibit A
Form of Opinion of Company Counsel
----------------------------------
____________, ______
[UNDERWRITERS]
Re: Thomas & Betts Corporation
Debt Securities (the "Offered Securities")
------------------------------------------
Ladies and Gentlemen:
This opinion is directed to the Underwriters pursuant to
Section 5(b)(1) of the Underwriting Agreement Basic Provisions and the Terms
Agreement (of which the Underwriting Agreement Basic Provisions is Annex A
thereto) dated ________________,199__ (collectively, the "Underwriting
Agreement"), among the Company and you, with respect to the offer and sale of
the Offered Securities. All terms defined or used in the Underwriting
Agreement have the same meaning when used herein, unless otherwise noted.
I am Vice President-General Counsel and Secretary of the Company
and have acted as such in connection with the Offered Securities and the
Underwriting Agreement. I or attorneys under my supervision have made such
examination and investigation as we have deemed necessary in order to give the
following opinion.
Based on the foregoing, it is my opinion that:
(i) The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Tennessee and has
full corporate power and authority under such laws to own its properties and to
conduct its business as described in the Prospectus; the Company is duly
qualified to do business and is in good standing in each jurisdiction in which
it owns or leases real property or in which the conduct of its business
requires such qualification, except for such instances which in the aggregate
will not have a material adverse effect on the Company;
(ii) Each subsidiary of the Company which is a significant
subsidiary as defined in Rule 405 of Regulation C of the 1933 Act Regulations
(each a "Significant Subsidiary") has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction
of its incorporation, has corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Registration Statement, and, to the best of my knowledge, is duly qualified to
do business and is in good standing in each jurisdiction in which such
qualification is required, except where the failure to so qualify would not
have a material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise; all of the issued and outstanding
capital stock of each Significant Subsidiary has been duly authorized and
validly issued and is fully paid and non-assessable, and all of such capital
stock, except for directors' qualifying shares, is owned by the Company,
directly or through subsidiaries, free and clear of any mortgage, pledge,
lien, encumbrance, claim or equity;
(iii) Except for matters described in the Prospectus (as to which I
can express no opinion at this time concerning the Company's liability (if
any) or the effect of any adverse determination upon the business, condition
(financial or otherwise) or operations of the Company), there is no pending,
or to my knowledge, threatened action or proceeding before any court or
administrative agency which individually (or in the aggregate in the case of
any group of related lawsuits) is expected to have a material adverse effect
on the financial condition of the Company or the ability of the Company to
perform its obligations under the Indenture;
(iv) The Indenture has been duly qualified under the 1939 Act and
duly and validly authorized, executed and delivered by the Company and
(assuming the Indenture has been duly authorized, executed and delivered by
the Trustee) constitutes a valid and binding agreement of the Company,
enforceable in accordance with its terms;
(v) The Offered Securities are in due and proper form and have been
duly and validly authorized by all necessary corporate action and, when
executed and authenticated as specified in the Indenture and delivered against
payment of the consideration therefor determined in accordance with the
Underwriting Agreement, will be valid and binding obligations of the Company,
enforceable in accordance with their terms, and each holder of the Offered
Securities will be entitled to the benefits of the Indenture;
(vi) The Company possesses all permits, approvals, franchises and
other rights which are requisite for the conduct of its business as described
in the Prospectus or for the actions contemplated by the Underwriting Agreement
and the offering contemplated by the Prospectus;
(vii) I have reviewed or caused to be reviewed by attorneys under my
supervision the Registration Statement, the Prospectus and each amendment and
supplement thereto (including the documents incorporated by reference) and
have no reason to believe that, as of their respective effective or issue
dates, as of the date of the Terms Agreement or as of the Closing Time, either
the Registration Statement or the Prospectus or any such amendment or
supplement (or any such documents incorporated by reference) contained an
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;
(viii) I do not know of any statute or regulation or legal or
governmental proceeding required to be described in the Prospectus which is
not described as required, nor of any contract or document of a character
required to be described in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement which is not described and
filed as required; and the descriptions in the Registration Statement and the
Prospectus of the contracts and other documents therein described are accurate
and fairly present the information required to be shown;
(ix) The execution and delivery by the Company of the Underwriting
Agreement and the consummation by the Company of the transactions herein and
therein contemplated and compliance with the terms of the Underwriting
Agreement do not and will not conflict with or result in a breach of any of the
terms of the Charter or By-laws of the Company, and will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan, credit or note
agreement, lease or other agreement or instrument material to the Company to
which the Company is a party or by which it or any or its properties are
bound, or any existing applicable law, rule, regulation, judgment, order or
decree of any government, governmental instrumentality or court, having
jurisdiction over the Company or any of its properties;
(x) No authorization, approval, consent or license of any
regulatory body or authority (other than under the 1933 Act, the 1939 Act and
the securities or Blue Sky laws of the various states) is required for the
valid authorization, issuance, sale and delivery of the Offered Securities as
herein contemplated or the valid authorization, execution, delivery and
performance by the Company of the Underwriting Agreement and the Indenture or
the consummation by the Company of the transactions contemplated herein or
therein, or, if so required, all such authorizations, approvals, consents and
licenses, specifying the sale, have been obtained and are in full force and
effect;
(xi) The Registration Statement has become effective under the 1933
Act and, to the best of my knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or contemplated under the
1933 Act; the Registration Statement and the Prospectus, and each amendment
or supplement thereto (except for the financial statements and schedules
included therein, as to which I express no opinion), comply as to form in all
material respects to the requirements of the 1933 Act and the 1933 Act
Regulations and, as to documents incorporated therein, to the requirements of
the 1934 Act and the 1934 Act Regulations in effect at the time such documents
were filed with the Commission; and
(xii) The Underwriting Agreement has been duly and validly
authorized, executed and delivered by the Company and constitutes a valid and
binding agreement of the Company, enforceable in accordance with its terms.
(xii) The Underwriting Agreement has been duly and validly
authorized, executed and delivered by the Company and constitutes a valid and
binding agreement of the Company, enforceable in accordance with its terms.
My opinions as to the enforceability of the Indenture, the
Offered Securities and Underwriting Agreement set forth in subparagraphs (iv),
(v) and (xii) above, are limited by bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting enforcement of
creditors' rights or by general equity principles and subject to any
principles of public policy limiting the right to enforce the indemnification
and contribution provisions contained in Sections 6 and 7 of the Underwriting
Agreement.
In rendering the foregoing opinion, we have assumed that (i) all
signatures on all documents examined by us are genuine and that where any such
signature (other than a signature purporting to have been made on behalf of
the Company) purports to have been made in a corporate, governmental,
fiduciary or other capacity, the person who affixed such signature had the due
authority to do so, (ii) certain factual matters contained in certificates of
public officials are accurate, true and correct, and (iii) photostat copies of
such documents, records and certificates conform to the originals.
This opinion is intended solely for the benefit of the
Underwriters and is not to be relied on by, and no copies of it are to be
delivered to, any other person without my prior written consent, except that
Underwriters' counsel may rely upon this opinion as to all matters of
Tennessee law in rendering its opinion of even date herewith. I am not
assuming any professional responsibility to any other person by rendering this
opinion. It is understood that this opinion speaks as of the date given,
notwithstanding any delivery as contemplated above on any other date.
Very truly yours,
Exhibit 1(b)
Terms Agreement
(Attaching Underwriting Agreement Basic Provisions)
Dated as of
______________, 199__
between
THOMAS & BETTS CORPORATION
and
[Underwriters]
PREFERRED STOCK
par value
$.10 per share
THOMAS & BETTS CORPORATION
Preferred Stock, par value $.10 per share
Terms Agreement
________ __, 199_
Thomas & Betts Corporation
8155 T&B Boulevard
Memphis, Tennessee 38125
Ladies and Gentlemen:
We understand that Thomas & Betts Corporation (the "Company")
proposes to issue and sell $_____________ of shares of its Preferred Stock,
par value $.10 per share (the "Offered Preferred Stock"). Subject to the
terms and conditions set forth or incorporated by reference herein, the
underwriters named below (the "Underwriters") offer to purchase, severally and
not jointly, the respective number of shares of Offered Preferred Stock set
forth below opposite their respective names at the purchase price set forth
below.
Underwriting Proceeds
Number of Discounts and to the
Underwriters Shares Purchased Commissions Company
- ------------------- ------------------ --------------- ----------
________________... _____________ % $_____
________________... _____________ % $_____
Total........ _____________ $_________ $_____
The Offered Preferred Stock shall have the following terms:
Title of Offered Preferred Stock:
Public offering price:
Purchase price:
Current ratings: Moody's Investors Service, Inc. [ ];
Standard & Poor's Corporation [ ]
Closing date, time and
location: ____________, ______, 10:00 A.M., New York City time
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
Location for checking
Offered Preferred Stock: New York, New York
Wire Transfer of Funds in Settlement:
Listing requirement: [None]
Redemption provisions:
Liquidation Preference:
Sinking fund requirements:
Number of Option Shares, if any, that may be
purchased by the Underwriters:
Other terms and conditions:
All provisions contained in the document attached as Annex A
hereto entitled "Thomas & Betts Corporation -- Preferred Stock -- Underwriting
Agreement Basic Provisions" (the "Basic Provisions") are hereby incorporated
by reference in their entirety herein and shall be deemed to be a part of this
Terms Agreement to the same extent as if such provisions had been set forth
in full herein. For purposes of the Basic Provisions, references to the
"Representative" shall be deemed to refer ______________________. Terms
defined in the Basic Provisions are used herein as therein defined.
Please accept this offer by signing a copy of this Terms
Agreement in the space set forth below and returning the signed copy to us.
Very truly yours,
[UNDERWRITERS]
By: ____________________________
Name:
Title:
Acting on behalf of themselves and the
other named Underwriters
Accepted:
THOMAS & BETTS CORPORATION
By: _____________________________
Name:
Title:
August __, 1998
Annex A
THOMAS & BETTS CORPORATION
(a Tennessee Corporation)
Preferred Stock
UNDERWRITING AGREEMENT BASIC PROVISIONS
---------------------------------------
Thomas & Betts Corporation (the "Company"), proposes to issue
and sell $600 million of shares of its Preferred Stock, par value $.10 per
share (the "Preferred Stock") from time to time on terms to be determined at
the time of sale (the "Offered Preferred Stock").
This is to confirm the arrangements with respect to the
purchase of Offered Preferred Stock from the Company by the Representative and
the several Underwriters listed in the applicable terms agreement entered into
between the Representative and the Company of which this Underwriting
Agreement is Annex A thereto (the "Terms Agreement"). With respect to any
particular Terms Agreement, the Terms Agreement, together with the provisions
hereof incorporated therein by reference, is herein referred to as the
"Agreement." Terms defined in the Terms Agreement are used herein as therein
defined.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-________) for the registration of certain preferred stock and other
securities, including the Offered Preferred Stock, under the Securities Act of
1933, as amended (the "1933 Act"), and the offering thereof from time to time
in accordance with Rule 415 of the rules and regulations of the Commission
under the 1933 Act (the "1933 Act Regulations") and has filed such amendments
thereto as may have been required to the date of the Terms Agreement. Such
registration statement, as amended, has been declared effective by the
Commission.
The Company has, pursuant to Rule 424 under the 1933 Act, filed
with, or transmitted for filing to, or shall within the required period of time
hereafter file with or transmit for filing to, the Commission a prospectus
supplement (the "Prospectus Supplement") specifically relating to the Offered
Preferred Stock, together with a revised and restated prospectus relating to
preferred stock covered by the above-referenced registration statement.
The term "Registration Statement" refers to such registration
statement in the form in which it became effective, including the exhibits
thereto and the documents incorporated by reference therein, as amended to the
date hereof. The term "Basic Prospectus" means the above-referenced revised
and restated prospectus relating to Preferred Stock. The term "Prospectus"
means the Basic Prospectus supplemented by the Prospectus Supplement. The
term "Preliminary Prospectus" means a preliminary prospectus supplement
specifically relating to the Offered Preferred Stock together with the Basic
Prospectus. As used herein, the terms "Basic Prospectus," "Prospectus" and
"Preliminary Prospectus" shall include in each case the documents, if any,
incorporated by reference therein. The terms "supplement" and "amendment" or
"amend" as used herein shall include all documents deemed to be incorporated
by reference in the Prospectus that have been filed subsequent to the date of
the Basic Prospectus by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act").
If the Company has filed an abbreviated statement to register
additional shares of Preferred Stock pursuant to Rule 462(b) under the 1933
Act, then any reference herein to the term "Registration Statement" shall
include such Rule 462(b) registration statement.
Section 1. Representations and Warranties of the Company.
(a) The Company represents and warrants to the Representative and
to each Underwriter named in a Terms Agreement, as of the date thereof (the
"Representative Date"), as follows:
(i) Due Incorporation and Qualification. The Company has
been duly incorporated and is validly existing as a corporation
in good standing under the laws of the State of Tennessee, has
the corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Prospectus; and is duly qualified to do business and is in good
standing in each jurisdiction in which such qualification is
required, except where the failure to so qualify would not have a
material adverse effect on the condition, financial or otherwise,
or the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise.
(ii) Subsidiaries. Each subsidiary of the Company which
is a significant subsidiary as defined in Rule 405 of Regulation
C of the 1933 Act Regulations (each a "Significant Subsidiary")
has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction
of its incorporation, has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, except
where the failure to so qualify would not have a material adverse
effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise; and all of the issued
and outstanding capital stock of each Significant Subsidiary has
been duly authorized and validly issued, is fully paid and non-
assessable and, except for directors' qualifying shares (except
as otherwise stated in the Registration Statement), is owned by
the Company, directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim
or equity.
(iii) Registration Statement and Prospectus. The
Registration Statement and the Prospectus, at the time the
Registration Statement became effective and as of the applicable
Representation Date, complied in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the
rules and regulations of the Commission promulgated thereunder.
The Registration Statement, at the time it became effective and
as of the applicable Representation Date, did not and will not,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading. The Prospectus, at the
time the Registration Statement became effective and as of the
applicable Representation Date, did not, and will not, contain an
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; provided, however, that the representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by an Underwriter expressly for use in the
Registration Statement or Prospectus or to those parts of the
Registration Statement which constitute Statements of Eligibility
and Qualification of Trustees (Form T-1) under the 1939 Act.
No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
initiated or threatened by the Commission.
(iv) Incorporated Documents. The documents incorporated by
reference in the Prospectus, at the time they were or hereafter
are filed with the Commission, complied and will comply in all
material respects with the requirements of the 1934 Act and the
rules and regulations promulgated thereunder (the "1934 Act
Regulations"), and, when read together and with the other
information in the Prospectus, did not and will not contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under
which they were or are made, not misleading.
(v) Accountants. The accountants who certified the financial
statements included or incorporated by reference in the
Prospectus are independent public accountants as required by the
1933 Act and the 1933 Act Regulations.
(vi) Financial Statements. The financial statements of the
Company included or incorporated by reference in the Prospectus
and the Registration Statement present fairly the financial
position of the Company as of the dates thereof and the results
of operations, changes in common stockholders' investment and
cash flows of the Company, for the respective periods covered
thereby, all in conformity with generally accepted accounting
principles applied on a consistent basis throughout the entire
period involved; and the financial schedules included or
incorporated by reference in the Registration Statement meet the
requirements of the 1933 Act Regulations or the 1934 Act
Regulations, as applicable.
(vii) Material Changes or Material Transactions. Except as
stated in the Prospectus, subsequent to the respective dates as
of which information is given in the Registration Statement and
the Prospectus, the Company has not incurred any liabilities or
obligations, direct or contingent, or entered into any
transactions which are material to the Company, and there has not
been any material adverse change in the capital stock or short-
term debt, or any material increase in long-term debt of the
Company, or any material adverse change, or any development
involving a prospective material adverse change, in the condition
(financial or other), business, prospects, net worth or results
of operations of the Company and its subsidiaries considered as
one entity.
(viii) No Defaults; Regulatory Approvals. Neither the Company
nor any of its subsidiaries is in violation of its charter or in
default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which it is a party or by which it or any of
them or their properties may be bound.
The execution and delivery of this Agreement and the
consummation of the transactions contemplated herein and in the resolution of
the Company's Board of Directors setting forth the terms of the Offered
Preferred Stock (the "Series Resolution") have been duly authorized by all
necessary corporate action and executed by the Company and will not conflict
with or constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of
the Company or any of its subsidiaries pursuant to, any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the Company
or any such subsidiary is a party or by which it or any of them may be bound
or to which any of the property or assets of the Company or any such
subsidiary is subject, which conflict, breach or default would have,
individually or in the aggregate with any other such instances, a material
adverse effect on the condition (financial or other), business, prospects, net
worth or results of operations of the Company and its subsidiaries considered
as one entity, nor will such action result in any material violation of the
provisions of the charter or by-laws of the Company or any law, administrative
regulation or administrative or court order or decree currently in effect or
in effect at the time of execution and delivery of this Agreement and
applicable to the Company or any of its subsidiaries.
No consent, approval, authorization, order or decree of any
court or governmental agency or body is required for the consummation by the
Company of the transactions contemplated by this Agreement, except such as may
be required under the 1933 Act, the 1933 Act Regulations or state securities
or Blue Sky laws and the filing of the Series Resolution in Tennessee.
(ix) Legal Proceedings; Contracts. Except for matters
described in the Prospectus (as to which the Company can express
no opinion at this time concerning the Company's liability (if
any) or the effect of any adverse determination upon the
business, condition (financial or otherwise) or operations of the
Company), there is no pending, or to the best knowledge of any
financial officer of the Company, threatened action or proceeding
before any court or administrative agency which individually (or
in the aggregate in the case of any group of related lawsuits) is
expected to have a material adverse effect on the financial
condition of the Company and its subsidiaries considered as one
entity.
(x) Compliance with Laws. The Company's business and
operations comply in all material respects with all laws and
regulations applicable thereto and there are no known, proposed
or threatened changes in any laws or regulations which would have
a material adverse effect on the Company or the manner in which
it conducts its business. The Company possesses all valid and
effective certificates, licenses and permits required to conduct
its business as now conducted, except for instances which
individually or in the aggregate do not, or will not, have a
material adverse effect on the condition (financial or other),
business, prospects or results of operations of the Company and
its subsidiaries considered as one entity.
(xi) Capital Stock. The authorized capital stock of the
Company and the provisions of the Series Resolution conform as to
legal matters to the descriptions thereof contained in the
Prospectus.
(xii) Validity of the Offered Preferred Stock. The Offered
Preferred Stock has been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be
validly issued, fully paid and non-assessable, and the issuance
of such shares will not be subject to any preemptive or similar
rights.
(xiii) Registration Rights. Except for matters described in the
Prospectus, there are no contracts or agreements between the
Company and any person granting such person the right to require
the Company to file a registration statement under the 1933 Act
with respect to any equity securities of the Company or to
require the Company to include such securities with the Preferred
Stock registered pursuant to the Registration Statement.
(b) Additional Certifications. Any certificate signed by any
officer of the Company and delivered to the Representative and the counsel for
the Underwriters in connection with an offering of the Offered Preferred Stock
shall be deemed a representation and warranty by the Company to each
Underwriter participating in such offering as to the matters covered thereby on
the date of such certificate unless subsequently amended or supplemented
subsequent thereto.
Section 2. Purchase and Sale.
(a) The obligations of the Underwriters to purchase, and the
Company to sell, the Offered Preferred Stock shall be evidenced by the Terms
Agreement. The Terms Agreement specifies the total number of shares of the
Offered Preferred Stock, the names of the Underwriters participating in the
offering and the number of shares each Underwriter severally has agreed to
purchase, the purchase price to be paid by the Underwriters for the Offered
Preferred Stock, the public offering price and any terms of the Offered
Preferred Stock not already specified (including, but not limited to,
designations, current ratings, listing requirements, redemption provisions,
liquidation preference and sinking fund requirements).
The several commitments of the underwriters to purchase Offered
Preferred Stock pursuant to the Terms Agreement shall be deemed to have been
made on the basis of the representations and warranties herein contained and
shall be subject to the terms and conditions herein set forth.
(b) Subject to the terms and conditions herein set forth, the
Company may grant, if so provided in the Terms Agreement relating thereto, an
option to the Underwriters, severally and not jointly, to purchase additional
shares of Preferred Stock to cover over-allotments, if any (the "Option
Shares"). If the Terms Agreement so provides, the Underwriters may purchase
up to the amount of Option Shares set forth therein at the same price per
share as is applicable to the Offered Preferred Stock. As used herein, the
term "Offered Preferred Stock" shall include Option Shares. Such option, if
granted, will expire 30 days after the date of this Agreement, and may be
exercised in whole or in part from time to time only for the purpose of
covering over-allotments which may be made in connection with the offering of
the Offered Preferred Stock upon notice by the Representative to the Company
setting forth the number of Option Shares as to which the several Underwriters
are then exercising the option and the time and date of payment and delivery
for such Option Shares.
Any such time and date of delivery shall be determined by the
Representative, but shall not be later than four business days and not be
earlier that two business days after the exercise of said option, nor in any
event prior to Closing Time, unless otherwise agreed upon by the
Representative and the Company.
If the option is exercised as to all or any portion of the
Option Shares, each Underwriter, acting severally and not jointly, will
purchase that proportion of the total number of Option Shares then being
purchased which the number of shares of Offered Preferred Stock each such
Underwriter has agreed to purchase as set forth in the Terms Agreement bears
to the total number of shares of Offered Preferred Stock, subject to such
adjustments as the Representative shall make to eliminate any sales or
purchases of fractional shares of Preferred Stock.
(c) Payment of the purchase price for any Offered Preferred Stock
to be purchased by the Underwriters shall be made to the Company at either the
Company's offices in Memphis, Tennessee or the office of Davis Polk &
Wardwell, 450 Lexington Avenue, New York, New York 10017, or at such other
place as shall be agreed upon by the Representative and the Company, at 10:00
A.M., New York City time, on the third business day (unless postponed in
accordance with the provisions of Section 10) following the date of the Terms
Agreement or at such other date, time or location specified in the Terms
Agreement, or as otherwise shall be agreed upon by the Representative and the
Company (such time and date being referred to as a "Closing Time").
Certificates for the Offered Preferred Stock shall be in
definitive form and registered in such names and in such denominations as the
Representative shall request in writing at least two business days prior to
the Closing Time. Delivery of the Offered Preferred Stock shall be made to
the Underwriters as specified in the Terms Agreement against payment by such
Underwriters of the purchase price thereof to the Company (or such other
person as the Company may direct) by wire transfer of immediately available
funds. Such Offered Preferred Stock will be made available for examination
and packaging by the Representative in New York, New York, on or before the
first business day prior to the Closing Time or at such other time and place
specified in the Terms Agreement.
Section 3. Covenants of the Company.
The Company covenants with the Representative and with each
other Underwriter as follows:
(a) Prospectus Supplement. Immediately following the execution of
this Agreement, the Company will prepare a Prospectus Supplement in connection
with the offering of the Offered Preferred Stock. The Company will promptly
transmit copies of the Prospectus Supplement to the Commission for filing
pursuant to Rule 424 of the 1933 Act Regulations.
(b) Notice of Certain Events. The Company will notify the
Representative promptly (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the transmittal to the Commission for filing of
any supplement to the Prospectus or any document to be filed pursuant to the
1934 Act which will be incorporated by reference in the Prospectus, (iii) of
the receipt of any comments from the Commission with respect to the
Registration Statement, the Prospectus or the Prospectus Supplement relating
in any way to the offer and sale of the Offered Preferred Stock, (iv) of any
request by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectus or for additional information,
and (v) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose.
(c) Notice of Certain Proposed Filings. The Company will give the
Representative notice of its intention to file or prepare any amendment to the
Registration Statement or any amendment or supplement to the Prospectus, and
will furnish the Representative with copies of any such amendment or
supplement or other documents proposed to be filed or prepared a reasonable
time in advance of such proposed filing or preparation, as the case may be.
(d) Copies of the Registration Statement and the Prospectus. The
Company will deliver to the Representative as many signed and conformed copies
of the Registration Statement (as originally filed) and of each amendment
thereto (including exhibits filed therewith or incorporated by reference
therein and documents incorporated by reference in the Prospectus) as the
Representative may reasonably request. The Company will furnish to the
Representative as many copies of the Prospectus (as amended or supplemented)
as the Representative shall reasonably request so long as the Underwriters are
required to deliver a Prospectus in connection with sales or solicitations of
offers to purchase the Offered Preferred Stock.
(e) Revisions of Prospectus -- Material Changes. If at any time
when the Prospectus is required by the 1933 Act to be delivered in connection
with sales of the Offered Preferred Stock any event shall occur or condition
exist as a result of which it is necessary, in the reasonable opinion of
counsel for the Company, to further amend or supplement the Prospectus in
order that the Prospectus will not include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser, or if it shall be necessary, in
the reasonable opinion of such counsel, at any such time to amend or
supplement the Registration Statement or the Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act Regulations the Company
will promptly prepare and file with the Commission such amendment or
supplement, whether by filing documents pursuant to the 1934 Act, the 1933 Act
or otherwise, as may be necessary to correct such untrue statement or omission
or to make the Registration Statement and Prospectus comply with such
requirements.
(f) Earnings Statements. The Company will make generally available
to its security holders as soon as practicable after the close of the period
covered thereby, an earnings statement (in form complying with the provisions
of Rule 158 under the 1933 Act) covering each twelve-month period beginning,
in each case, not later than the first day of the Company's fiscal quarter
next following the "effective date" (as defined in such Rule 158) of the
Registration Statement with respect to each sale of Offered Preferred Stock.
(g) Blue Sky Qualifications. The Company will endeavor, in
cooperation with the Underwriters, to qualify the Offered Preferred Stock for
offering and sale under the applicable securities laws of such states and other
jurisdictions of the United States as the Underwriters may designate, and will
maintain such qualifications in effect for so long as may be required for the
distribution of the Offered Preferred Stock; provided, however, that the
Company shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or to subject itself to
taxation as doing business in any jurisdiction in which it is not otherwise
required to be so qualified. The Company will file such statements and
reports as may be required by the laws of each jurisdiction in which the
shares of Offered Preferred Stock have been qualified as provided above.
(h) 1934 Act Filings. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file promptly
all documents required to be filed with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the 1934 Act.
Section 4. Payment of Expenses.
The Company will pay all expenses incident to the performance
of its obligations under this Agreement, including:
(i) the preparation and filing of the Registration Statement
and all amendments thereto, the Preliminary Prospectus, if any, and
the Prospectus and any amendments or supplements thereto;
(ii) the filing of this Agreement;
(iii) the preparation, issuance, printing and delivery of the
Offered Preferred Stock;
(iv) the reasonable fees and disbursements of the Company's
accountants and counsel, and of the transfer agent;
(v) the qualification of the Offered Preferred Stock under
securities laws in accordance with the provisions of Section
3(g), including filing fees and the reasonable fees and
disbursements of counsel to the Underwriters in connection
therewith and in connection with the preparation of any Blue Sky
Survey; and
(vi) the printing and delivery to the Underwriters in
quantities as hereinabove stated of copies of the Registration
Statement and any amendments thereto, and of the Prospectus and
any amendments or supplements thereto.
If this Agreement is terminated by the Representative in
accordance with the provisions of Section 5 or clause (i) of Section 9 hereof,
the Company shall reimburse upon demand the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters that shall have been incurred by the Underwriters
in connection with the proposed purchase and sale of the Offered Preferred
Stock.
Section 5. Conditions of Underwriters' Obligation.
The several obligations of the Underwriters to purchase the
Offered Preferred Stock pursuant to the Terms Agreement will be subject at all
times to the accuracy of the representations and warranties on the part of the
Company herein, to the accuracy of the statements of the Company's officers
made in any certificate furnished pursuant to the provisions hereof, to the
performance and observance by the Company of all covenants and agreements
contained therein, or in the Terms Agreement, on its part to be performed and
observed and to the following additional conditions precedent:
(a) Stop Order; Ratings Change; etc. At the Closing Time, (i) no
stop order suspending the effectiveness of the Registration Statement shall
have been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, (ii) the rating assigned as of the date of this
Agreement by any "nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g) under the 1933 Act
Regulations, to any debt securities of the Company shall not have been lowered
since the execution of this Agreement nor shall any such rating organization
have publicly announced that it has placed any debt securities of the Company
on what is commonly termed a "watch list" for possible downgrading, and (iii)
there shall not have come to the attention of the Representative any facts
that would cause the Representative to believe that the Prospectus, including
the Prospectus Supplement, at the time it was required to be delivered to a
purchaser of the Offered Preferred Stock, contained an untrue statement of a
material fact or omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances existing at such
time, not misleading.
(b) Legal Opinions. At the Closing Time, the Representative shall
have received the following documents:
(1) Opinion of Company Counsel. The opinion of the Vice
President-General Counsel and Secretary of the Company or the Assistant
Secretary and Corporate Counsel of the Company, dated as of such date, in form
and substance reasonably satisfactory to the Representative, to the effect as
set forth in Exhibit A.
(2) Opinion of Counsel to the Underwriters. The opinion of
__________________________________, counsel to the Underwriters, with respect
to such matters as the Representative may reasonably request.
(c) Officer Certificate. At the Closing Time, there shall not have
been, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change in the
condition (financial or otherwise) of the Company, or in the earnings or
business affairs of the Company; and the Representative shall have received a
certificate of any Vice President of the Company, dated as of the Closing
Time, to the effect (i) that there has been no such material adverse change,
(ii) that the other representations and warranties of the Company contained in
Section 1 are true and correct in all material respects with the same force
and effect as though expressly made at and as of the date of such certificate,
except to the extent that such representations and warranties expressly relate
to an earlier date or later date (in which case such representations and
warranties are true and correct on and as of such earlier date or will be true
and correct on and as of such later date, as the case may be), (iii) that the
Company has made or caused to be made any required filing of the Prospectus
pursuant to Rule 424(b) in the manner and within the time period required by
Rule 424(b), and (iv) that the Company has complied with all material
agreements and satisfied all material conditions on its part to be performed
or satisfied at or prior to the date of such certificate. The officer signing
and delivering this certificate may rely upon the best of his or her knowledge
as to proceedings threatened.
(d) Comfort Letter. At the time of the execution of the Terms
Agreement and at the Closing Time, the Representative shall have received a
letter from KPMG Peat Marwick LLP or their successors as the Company's
independent accountants (the "Independent Accountants"), dated as of the date
of the Terms Agreement and of the Closing Time, as the case may be, in form
and substance satisfactory to the Representative to the effect that:
(i) they are independent public accountants within the
meaning of the 1933 Act and the 1933 Act Regulations;
(ii) in their opinion the Company's financial statements and
schedules included or incorporated by reference in the
Registration Statement and Prospectus and covered by their
reports included or incorporated therein comply as to form in all
material respects with the applicable accounting requirements of
the 1933 Act and the 1933 Act Regulations or the 1934 Act and the
1934 Act Regulations, as the case may be;
(iii) they have conducted reviews of the unaudited interim
consolidated financial information of the Company included in the
Company's Quarterly Reports on Form 10-Q incorporated in the
Registration Statement and Prospectus in compliance with the
standards for such reviews promulgated by the American Institute
of Certified Public Accountants;
(iv) on the basis of a reading of the financial statements and
schedules of the Company included or incorporated in the
Prospectus and the Registration Statement, and the latest
available unaudited interim financial statements of the Company,
inquiries of officials of the Company responsible for financial
and accounting matters, and other specified procedures and
inquiries, nothing has come to their attention that caused them
to believe that:
(A) the unaudited financial statements of the Company
included or incorporated in the Prospectus and the
Registration Statement do not comply as to form in all
material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations or
the 1934 Act and the 1934 Act Regulations thereunder, as the
case may be, or that such unaudited financial statements are
not presented fairly in conformity with generally accepted
accounting principles;
(B) with respect to the period subsequent to the
date of the most recent financial statements incorporated in
the Registration Statement and the Prospectus, as of a
specified date not more than five business days prior to the
date of delivery of such letter, there has been any change
in the common or preferred stock or long-term debt of the
Company or, as of such date, there has been any decrease in
assets or common stockholders' investment, in each case as
compared with amounts shown in the most recent consolidated
balance sheet of the Company included or incorporated in the
Registration Statement and the Prospectus, except in each
case for changes or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter; or
(C) for the period from the date of the most recent
financial statements incorporated in the Registration
Statement and the Prospectus to such specified date, there
was any decrease in operating revenues, operating income,
income before taxes or net income of the Company in each
case as compared with the comparable period of the preceding
year, except in each case for decreases which the Prospectus
discloses have occurred or may occur or which are described
in such letter; and
(v) in addition to their audit referred to in their reports
included or incorporated by reference in the Registration
Statement and the Prospectus and the reviews, inquiries and
procedures referred to in clauses (iii) and (iv) above, such
letter shall state that KPMG Peat Marwick LLP has performed other
specified procedures, with respect to certain numerical data and
information included or incorporated in the Registration
Statement and the Prospectus, as are requested by the
Representative and specified in such letter and have found such
data and information to be in agreement with the accounting
records of or analyses prepared by the Company.
(e) Other Documents. At the Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as
such counsel may reasonably require for the purpose of enabling such counsel
to pass upon the issuance and sale of Offered Preferred Stock as herein
contemplated and related proceedings, or in order to evidence the accuracy and
completeness of any of the representations and warranties, or the fulfillment
of any of the conditions, herein contained; and all proceedings taken by the
Company in connection with the issuance and sale of Offered Preferred Stock
as herein contemplated shall be satisfactory in form and substance to the
Representative.
Section 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, arising out of any untrue statement of a
material fact contained in the Registration Statement (or any
amendment thereto), or the omission therefrom of a material fact
required to be stated therein or necessary to make the statements
therein not misleading or arising out of or based upon any untrue
statement of a material fact contained in the Prospectus (or any
amendment or supplement thereto) or the omission therefrom of a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or of
any claim whatsoever arising out of or based upon any such untrue
statement or omission, if such settlement is effected with the
written consent of the Company; and
(iii) against any and all expense whatsoever, reasonably
incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever
arising out of or based upon any such untrue statement or
omission, to the extent that any such expense is not paid under
(i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representative expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto),
or made in reliance upon the Statements of Eligibility and Qualification of
Trustees (Form T-1) under the 1939 Act filed as exhibits to the Registration
Statement; and provided, further, that the foregoing indemnity agreement, with
respect to any Preliminary Prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased Offered Preferred Stock, or any person controlling such
Underwriter, if a copy of the Prospectus (as then amended or supplemented if
the Company shall have furnished any amendments or supplements thereto) was not
sent or given by or on behalf of such Underwriter to such person, if required
by law so to have been delivered, at or prior to the written confirmation of
the sale of the Offered Preferred Stock to such person, and if the Prospectus
(as so amended or supplemented) would have cured the defect giving rise to such
losses, claims, damages or liabilities.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions made in the Registration
Statement (or any amendment thereto) or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriters through the
Representative expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of such action. In no
event shall the indemnifying parties be liable for the fees and expenses of
more than one counsel (in addition to any local counsel) separate from their
own counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances.
Section 7. Contribution.
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 6 is
for any reason held to be unenforceable by the indemnified parties although
applicable in accordance with its terms, the Company and the Underwriters of
each offering of Offered Preferred Stock shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated
by said indemnity agreement incurred by the Company and one or more of the
Underwriters in respect of such offering, as incurred, in such proportions
that the Underwriters are responsible for that portion represented by the
percentage that the underwriting discount appearing on the cover page of the
Prospectus in respect of such offering bears to the initial public offering
price appearing thereon and the Company is responsible for the balance;
provided, however, that no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section, each person, if any, who controls
an Underwriter within the meaning of Section 15 of the 1933 Act shall have the
same rights to contribution as such Underwriter, and each director of the
Company, each officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act shall have the same rights to contribution as the
Company.
Section 8. Representations, Warranties and Agreements to
Survive Delivery.
All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company, and shall survive each
delivery of and payment for any of the Offered Preferred Stock.
Section 9. Termination of Agreement.
The Representative may terminate this Agreement, immediately upon
notice to the Company, at any time prior to the Closing Time if: (i) there has
been, since the date hereof or since the respective dates as of which
information is given in the Registration Statement, any material adverse change
in the condition, financial or otherwise, or in the earnings or business
affairs of the Company, (ii) there shall have occurred any material adverse
change in the financial markets in the United States or any outbreak or
escalation of hostilities or other national or international calamity or
crisis, the effect of which shall be such as to make it, in your judgment of
the Representative, impracticable to market the Offered Preferred Stock or
enforce contracts for the sale of the Offered Preferred Stock, or (iii) trading
in any securities of the Company shall have been suspended by the Commission or
a national securities exchange, or if trading generally on either the American
Stock Exchange or the New York Stock Exchange shall have been suspended, or
minimum or maximum prices for trading shall have been fixed, or maximum ranges
for prices for securities shall have been required, by either of said exchanges
or by order of the Commission or any other governmental authority, or if a
banking moratorium shall have been declared by either federal or New York
authorities.
In the event of any termination of this Agreement, the covenant
set forth in Section 3(f) hereof, the provisions of Section 4 hereof, the
indemnity and contribution agreements set forth in Sections 6 and 7 hereof,
and the provisions of Sections 8 and 13 hereof shall remain in effect.
Section 10. Default by One Underwriter.
If any Underwriter shall fail at the Closing Time to purchase
the Offered Preferred Stock which it is obligated to purchase hereunder (the
"Defaulted Securities"), and the aggregate amount of Defaulted Securities is
not more than one-tenth of the aggregate amount of the Offered Preferred Stock
to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the amount of the Offered Preferred Stock set
forth opposite their respective names in Schedule I hereto bears to the
aggregate amount of Offered Preferred Stock set forth opposite the names of
all such non-defaulting underwriters to purchase the Defaulted Securities;
provided that in no event shall the amount of Defaulted Securities that any
Underwriter has agreed to purchase pursuant to this Agreement be increased by
an amount in excess of one-ninth of such amount of Offered Preferred Stock
without the written consent of such Underwriter. If the aggregate amount of
Defaulted Securities is more than one-tenth of the aggregate amount of the
Offered Preferred Stock to be purchased on the Closing Date, and arrangements
satisfactory to the Underwriters and the Company for the purchase of such
Defaulted Securities are not made within 36 hours after such default, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriters or the Company.
No action taken pursuant to this Section shall relieve a defaulting
Underwriter from liability in respect of its default under this Agreement.
In the event of any such default which does not result in a
termination of this Agreement, either the non-defaulting Underwriters or the
Company shall have the right to postpone the Closing Time for a period not
exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or arrangements.
Section 11. Notices.
All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if mailed, delivered by an express
courier service or transmitted by any facsimile communication. Notices to the
Underwriters shall be directed to the Representative at the address specified
in the Terms Agreement, with copies thereof directed to [Designated
Underwriters' counsel]. Notices to the Company shall be directed to it at 8155
T&B Boulevard, Memphis, Tennessee 38125, Attention: Vice President-Finance and
Treasurer, with copies thereof directed to the Legal Department of the Company
at 8155 T&B Boulevard, Memphis, Tennessee 38125, Attention: Vice
President-General Counsel and Secretary.
Section 12. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Company and any Underwriter who becomes a party hereto and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
parties hereto and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or
in respect of this Agreement or any provision herein contained. This Agreement
and all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties hereto their respective successors and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Offered Preferred Stock from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
Section 13. Governing Law.
This Agreement and the rights and obligations of the parties created
hereby and thereby shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and to be performed
in such state. Any suit, action or proceeding brought by the Company against
an Underwriter in connection with or arising under this Agreement shall be
brought solely in the state or federal court of appropriate jurisdiction
located in the Borough of Manhattan, The City of New York.
Exhibit A
Form of Opinion of Company Counsel
----------------------------------
____________, ______
[UNDERWRITERS]
Re: Thomas & Betts Corporation
Preferred Stock (the "Offered Preferred Stock")
Ladies and Gentlemen:
This opinion is directed to the Underwriters pursuant to
Section 5(b)(1) of the Underwriting Agreement Basic Provisions and the Terms
Agreement (of which the Underwriting Agreement Basic Provisions is Annex A
thereto) dated ________________, 199__ (collectively, the "Underwriting
Agreement"), among the Company and you, with respect to the offer and sale of
the Offered Preferred Stock. All terms defined or used in the Underwriting
Agreement have the same meaning when used herein, unless otherwise noted.
I am Vice President-General Counsel and Secretary of the Company
and have acted as such in connection with the Offered Preferred Stock and the
Underwriting Agreement. I or attorneys under my supervision have made such
examination and investigation as we have deemed necessary in order to give the
following opinion.
Based on the foregoing, it is my opinion that:
(i) The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the State
of Tennessee and has full corporate power and authority under
such laws to own its properties and to conduct its business as
described in the Prospectus; the Company is duly qualified to do
business and is in good standing in each jurisdiction in which it
owns or leases real property or in which the conduct of its
business requires such qualification, except for such instances
which in the aggregate will not have a material adverse effect on
the Company;
(ii) Each subsidiary of the Company which is a
significant subsidiary as defined in Rule 405 of Regulation C of
the 1933 Act Regulations (each a "Significant Subsidiary") has
been duly incorporated and is validly existing as a corporation
in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease
and operate its properties and conduct its business as described
in the Registration Statement, and, to the best of my knowledge,
is duly qualified to do business and is in good standing in each
jurisdiction in which such qualification is required, except
where the failure to so qualify would not have a material adverse
effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise; all of the issued and
outstanding capital stock of each Significant Subsidiary has been
duly authorized and validly issued and is fully paid and non-
assessable, and all of such capital stock, except for directors'
qualifying shares, is owned by the Company, directly or through
subsidiaries, free and clear of any mortgage, pledge, lien,
encumbrance, claim or equity;
(iii) Except for matters described in the Prospectus
(as to which I can express no opinion at this time concerning the
Company's liability (if any) or the effect of any adverse
determination upon the business, condition (financial or
otherwise) or operations of the Company), there is no pending, or
to my knowledge, threatened action or proceeding before any court
or administrative agency which individually (or in the aggregate
in the case of any group of related lawsuits) is expected to have
a material adverse effect on the financial condition of the
Company;
(iv) The authorized capital stock of the Company
conforms as to legal matters to the description thereof contained
in the Prospectus;
(v) The Offered Preferred Stock has been duly
authorized and, when issued and delivered in accordance with the
terms of this Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such shares will not be
subject to any preemptive or similar rights;
(vi) The Company possesses all permits, approvals,
franchises and other rights which are requisite for the conduct
of its business as described in the Prospectus or for the actions
contemplated by the Underwriting Agreement and the offering
contemplated by the Prospectus;
(vii) I have reviewed or caused to be reviewed by
attorneys under my supervision the Registration Statement, the
Prospectus and each amendment and supplement thereto (including
the documents incorporated by reference) and have no reason to
believe that, as of their respective effective or issue dates, as
of the date of the Terms Agreement or as of the Closing Time,
either the Registration Statement or the Prospectus or any such
amendment or supplement (or any such documents incorporated by
reference) contained an 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;
(viii) I do not know of any statute or regulation or
legal or governmental proceeding required to be described in the
Prospectus which is not described as required, nor of any
contract or document of a character required to be described in
the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement which is not described and
filed as required; and the descriptions in the Registration
Statement and the Prospectus of the contracts and other documents
therein described are accurate and fairly present the information
required to be shown;
(ix) The execution and delivery by the Company of the
Underwriting Agreement and the consummation by the Company of the
transactions herein and therein contemplated and compliance with
the terms of the Underwriting Agreement do not and will not
conflict with or result in a breach of any of the terms of the
Charter or By-laws of the Company, and will not conflict with or
result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan, credit or note agreement, lease or other agreement
or instrument material to the Company to which the Company is a
party or by which it or any or its properties are bound, or any
existing applicable law, rule, regulation, judgment, order or
decree of any government, governmental instrumentality or court,
having jurisdiction over the Company or any of its properties;
(x) No authorization, approval, consent or license of
any regulatory body or authority (other than under the 1933 Act
and the securities or Blue Sky laws of the various states) is
required for the valid authorization, issuance, sale and delivery
of the Offered Preferred Stock as herein contemplated or the
valid authorization, execution, delivery and performance by the
Company of the Underwriting Agreement or the consummation by the
Company of the transactions contemplated herein or therein, or,
if so required, all such authorizations, approvals, consents and
licenses, specifying the sale, have been obtained and are in full
force and effect;
(xi) The Registration Statement has become effective
under the 1933 Act and, to the best of my knowledge, no stop
order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the 1933 Act; the
Registration Statement and the Prospectus, and each amendment or
supplement thereto (except for the financial statements and
schedules included therein, as to which I express no opinion),
comply as to form in all material respects to the requirements of
the 1933 Act and the 1933 Act Regulations and, as to documents
incorporated therein, to the requirements of the 1934 Act and the
1934 Act Regulations in effect at the time such documents were
filed with the Commission; and
(xii) The Underwriting Agreement has been duly and
validly authorized, executed and delivered by the Company and
constitutes a valid and binding agreement of the Company,
enforceable in accordance with its terms, except as limited by
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting enforcement of creditors'
rights or by general equity principles and subject to any
principles of public policy limiting the right to enforce the
indemnification and contribution provisions contained in Sections
6 and 7 of the Underwriting Agreement.
In rendering the foregoing opinion, we have assumed that (i) all
signatures on all documents examined by us are genuine and that where any such
signature (other than a signature purporting to have been made on behalf of
the Company) purports to have been made in a corporate, governmental,
fiduciary or other capacity, the person who affixed such signature had the due
authority to do so, (ii) certain factual matters contained in certificates of
public officials are accurate, true and correct, and (iii) photostat copies of
such documents, records and certificates conform to the originals.
This opinion is intended solely for the benefit of the
Underwriters and is not to be relied on by, and no copies of it are to be
delivered to, any other person without my prior written consent, except that
Underwriters' counsel may rely upon this opinion as to all matters of
Tennessee law corporate law in rendering its opinion of even date herewith. I
am not assuming any professional responsibility to any other person by
rendering this opinion. It is understood that this opinion speaks as of the
date given, notwithstanding any delivery as contemplated above on any other
date.
Very truly yours,
Exhibit 1(c)
Terms Agreement
(Attaching Underwriting Agreement Basic Provisions)
Dated as of
______________, 199__
between
THOMAS & BETTS CORPORATION
and
[Underwriters]
COMMON STOCK
$.10 per share
with Preferred Stock Purchase Rights
THOMAS & BETTS CORPORATION
Common Stock, par value $0.10 per share
with Preferred Stock Purchase Rights
Terms Agreement
________ __, 199_
Thomas & Betts Corporation
8155 T&B Boulevard
Memphis, Tennessee 38125
Ladies and Gentlemen:
We understand that Thomas & Betts Corporation (the "Company")
proposes to issue and sell $_____________ of shares of its Common Stock, par
value $.10 per share (the "Offered Common Stock"). Subject to the terms and
conditions set forth or incorporated by reference herein, the underwriters
named below (the "Underwriters") offer to purchase, severally and not jointly,
the respective number of shares of Offered Common Stock, with Preferred Stock
Purchase Rights attached, set forth below opposite their respective names at
the purchase price set forth below.
Underwriting Proceeds
Number of Discounts and to the
Underwriters Shares Purchased Commissions Company
- ------------------- ------------------- --------------- ----------
________________... $_____________ % $_____
________________... $_____________ % $_____
Total........ $_____________ $_________ $_____
The Offered Common Stock shall have the following terms:
Title of Offered Common Stock:
Public offering price:
Purchase price:
Current ratings: Moody's Investors Service, Inc. [ ];
Standard & Poor's Corporation [ ]
Closing date, time and
location: ____________, ______, 10:00 A.M., New York City time
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
Location for checking
Offered Common Stock: New York, New York
Wire Transfer of Funds in Settlement:
Listing requirement: [None]
Redemption provisions:
Liquidation Preference:
Sinking fund requirements:
Number of Option Shares, if any, that may be
purchased by the Underwriters:
Other terms and conditions:
All provisions contained in the document attached as Annex A
hereto entitled "Thomas & Betts Corporation -- Common Stock -- Underwriting
Agreement Basic Provisions" (the "Basic Provisions") are hereby incorporated
by reference in their entirety herein and shall be deemed to be a part of this
Terms Agreement to the same extent as if such provisions had been set forth
in full herein. For purposes of the Basic Provisions, references to the
"Representative" shall be deemed to refer ______________________. Terms
defined in the Basic Provisions are used herein as therein defined.
Please accept this offer by signing a copy of this Terms
Agreement in the space set forth below and returning the signed copy to us.
Very truly yours,
[UNDERWRITERS]
By: ____________________________
Name:
Title:
Acting on behalf of themselves and the
other named Underwriters
Accepted:
THOMAS & BETTS CORPORATION
By: _____________________________
Name:
Title:
August __, 1998
Annex A
THOMAS & BETTS CORPORATION
(a Tennessee Corporation)
Common Stock, par value $.10 per share,
with Preferred Stock Purchase Rights
UNDERWRITING AGREEMENT BASIC PROVISIONS
Thomas & Betts Corporation (the "Company"), proposes to issue
and sell $600 million of shares of its Common Stock, par value $.10 per share
(the "Common Stock"), with Preferredd Stock Purchase Rights (as defined)
attached, from time to time on terms to be determined at the time of sale (the
"Offered Common Stock").
The terms and conditions of the Preferred Stock Purchase Rights
(the "Rights") are set forth in a Rights Agreement dated as of December 3, 1997
between the Corporation and First Chicago Trust Company of New York, as Rights
Agent ("Rights Agreement").
This is to confirm the arrangements with respect to the purchase
of Offered Common Stock from the Company by the Representative and the several
Underwriters listed in the applicable terms agreement entered into between the
Representative and the Company of which this Underwriting Agreement is Annex A
thereto (the "Terms Agreement"). With respect to any particular Terms
Agreement, the Terms Agreement, together with the provisions hereof
incorporated therein by reference, is herein referred to as the "Agreement."
Terms defined in the Terms Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-________) for the registration of certain common stock and other
securities, including the Offered Common Stock, under the Securities Act of
1933, as amended (the "1933 Act"), and the offering thereof from time to time
in accordance with Rule 415 of the rules and regulations of the Commission
under the 1933 Act (the "1933 Act Regulations") and has filed such amendments
thereto as may have been required to the date of the Terms Agreement. Such
registration statement, as amended, has been declared effective by the
Commission.
The Company has, pursuant to Rule 424 under the 1933 Act, filed
with, or transmitted for filing to, or shall within the required period of time
hereafter file with or transmit for filing to, the Commission a prospectus
supplement (the "Prospectus Supplement") specifically relating to the Offered
Common Stock, together with a revised and restated prospectus relating to
common stock covered by the above-referenced registration statement.
The term "Registration Statement" refers to such registration
statement in the form in which it became effective, including the exhibits
thereto and the documents incorporated by reference therein, as amended to the
date hereof. The term "Basic Prospectus" means the above-referenced revised
and restated prospectus relating to Common Stock. The term "Prospectus" means
the Basic Prospectus supplemented by the Prospectus Supplement. The term
"Preliminary Prospectus" means a preliminary prospectus supplement
specifically relating to the Offered Common Stock together with the Basic
Prospectus. As used herein, the terms "Basic Prospectus," "Prospectus" and
"Preliminary Prospectus" shall include in each case the documents, if any,
incorporated by reference therein. The terms "supplement" and "amendment" or
"amend" as used herein shall include all documents deemed to be incorporated
by reference in the Prospectus that have been filed subsequent to the date of
the Basic Prospectus by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act").
If the Company has filed an abbreviated registration statement
to register additional shares of Common Stock pursuant to Rule 462(b) under the
1933 Act, then any reference herein to the term "Registration Statement" shall
include such Rule 462(b) registration statement.
Section 1. Representations and Warranties of the Company.
(a) The Company represents and warrants to the Representative and
to each Underwriter named in a Terms Agreement, as of the date thereof (the
"Representation Date"), as follows:
(i) Due Incorporation and Qualification. The Company has
been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Tennessee, has the corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Prospectus; and is duly qualified to do business and is in
good standing in each jurisdiction in which such qualification is required,
except where the failure to so qualify would not have a material adverse
effect on the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its subsidiaries considered
as one enterprise.
(ii) Subsidiaries. Each subsidiary of the Company which is a
significant subsidiary as defined in Rule 405 of Regulation C of the 1933 Act
Regulations (each a "Significant Subsidiary") has been duly incorporated and
is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in
the Prospectus and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, except where the failure to so qualify would not
have a material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise; and all of the issued and
outstanding capital stock of each Significant Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and, except
for directors' qualifying shares (except as otherwise stated in the
Registration Statement), is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(iii) Registration Statement and Prospectus. The Registration
Statement and the Prospectus, at the time the Registration Statement became
effective and as of the applicable Representation Date, complied in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations and the rules and regulations of the Commission promulgated
thereunder. The Registration Statement, at the time it became effective and
as of the applicable Representation Date, did not and will not, contain an
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading. The Prospectus, at the time the Registration Statement became
effective and as of the applicable Representation Date, did not, and will not,
contain an 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; provided, however,
that the representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or Prospectus made
in reliance upon and in conformity with information furnished to the Company
in writing by an Underwriter expressly for use in the Registration Statement
or Prospectus or to those parts of the Registration Statement which constitute
Statements of Eligibility and Qualification of Trustees (Form T-1) under the
1939 Act.
No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
initiated or threatened by the Commission.
(iv) Incorporated Documents. The documents incorporated by
reference in the Prospectus, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations promulgated
thereunder (the "1934 Act Regulations"), and, when read together and with the
other information in the Prospectus, did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were or are made, not misleading.
(v) Accountants. The accountants who certified the financial
statements included or incorporated by reference in the Prospectus are
independent public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(vi) Financial Statements. The financial statements of the
Company included or incorporated by reference in the Prospectus and the
Registration Statement present fairly the financial position of the Company as
of the dates thereof and the results of operations, changes in common
stockholders' investment and cash flows of the Company, for the respective
periods covered thereby, all in conformity with generally accepted accounting
principles applied on a consistent basis throughout the entire period
involved; and the financial schedules included or incorporated by reference in
the Registration Statement meet the requirements of the 1933 Act Regulations
or the 1934 Act Regulations, as applicable.
(vii) Material Changes or Material Transactions. Except as
stated in the Prospectus, subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, the
Company has not incurred any liabilities or obligations, direct or contingent,
or entered into any transactions which are material to the Company, and there
has not been any material adverse change in the capital stock or short-term
debt, or any material increase in long-term debt of the Company, or any
material adverse change, or any development involving a prospective material
adverse change, in the condition (financial or other), business, prospects,
net worth or results of operations of the Company and its subsidiaries
considered as one entity.
(viii) No Defaults; Regulatory Approvals. Neither the Company
nor any of its subsidiaries is in violation of its charter or in default in
the performance or observance of any material obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which it is a party or by which it or any
of them or their properties may be bound.
The execution and delivery of this Agreement and the
consummation of the transactions contemplated herein have been duly authorized
by all necessary corporate action and executed by the Company and will not
conflict with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to which
the Company or any such subsidiary is a party or by which it or any of them may
be bound or to which any of the property or assets of the Company or any such
subsidiary is subject, which conflict, breach or default would have,
individually or in the aggregate with any other such instances, a material
adverse effect on the condition (financial or other), business, prospects, net
worth or results of operations of the Company and its subsidiaries considered
as one entity, nor will such action result in any material violation of the
provisions of the charter or by-laws of the Company or any law, administrative
regulation or administrative or court order or decree currently in effect or
in effect at the time of execution and delivery of this Agreement and
applicable to the Company or any of its subsidiaries.
No consent, approval, authorization, order or decree of any
court or governmental agency or body is required for the consummation by the
Company of the transactions contemplated by this Agreement, except such as may
be required under the 1933 Act, the 1933 Act Regulations or state securities
or Blue Sky laws.
(ix) Legal Proceedings; Contracts. Except for matters
described in the Prospectus (as to which the Company can express no opinion at
this time concerning the Company's liability (if any) or the effect of any
adverse determination upon the business, condition (financial or otherwise) or
operations of the Company), there is no pending, or to the best knowledge of
any financial officer of the Company, threatened action or proceeding before
any court or administrative agency which individually (or in the aggregate in
the case of any group of related lawsuits) is expected to have a material
adverse effect on the financial condition of the Company and its subsidiaries
considered as one entity.
(x) Compliance with Laws. The Company's business and
operations comply in all material respects with all laws and regulations
applicable thereto and there are no known, proposed or threatened changes in
any laws or regulations which would have a material adverse effect on the
Company or the manner in which it conducts its business. The Company
possesses all valid and effective certificates, licenses and permits required
to conduct its business as now conducted, except for instances which
individually or in the aggregate do not, or will not, have a material adverse
effect on the condition (financial or other), business, prospects or results
of operations of the Company and its subsidiaries considered as one entity.
(xi) Capital Stock. The authorized capital stock of the
Company conforms as to legal matters to the description thereof contained in
the Prospectus.
(xii) Validity of the Offered Common Stock and the Rights. The
Offered Common Stock has been duly authorized and, when issued and delivered
in accordance with the terms of this Agreement, will be validly issued, fully
paid and non-assessable, and the issuance of such shares will not be subject
to any preemptive or similar rights. The Rights have been duly authorized and,
when issued and delivered in accordance with the terms of this Agreement and
the Rights Agreement, will be validly issued, fully paid and non-assessable,
and the issuance of such Rights will not be subject to any preemptive or
similar rights.
(xiii) Registration Rights. Except for matters described in the
Prospectus, there are no contracts or agreements between the Company and any
person granting such person the right to require the Company to file a
registration statement under the 1933 Act with respect to any equity securities
of the Company or to require the Company to include such securities with the
Common Stock registered pursuant to the Registration Statement.
(b) Additional Certifications. Any certificate signed by any
officer of the Company and delivered to the Representative and the counsel for
the Underwriters in connection with an offering of the Offered Common Stock
shall be deemed a representation and warranty by the Company to each
Underwriter participating in such offering as to the matters covered thereby on
the date of such certificate unless subsequently amended or supplemented
subsequent thereto.
Section 2. Purchase and Sale.
(a) The obligations of the Underwriters to purchase, and the
Company to sell, the Offered Common Stock shall be evidenced by the Terms
Agreement. The Terms Agreement specifies the total number of shares of the
Offered Common Stock, the names of the Underwriters participating in the
offering and the number of shares each Underwriter severally has agreed to
purchase, the purchase price to be paid by the Underwriters for the Offered
Common Stock, the public offering price and any terms of the Offered Common
Stock not already specified (including, but not limited to, designations,
current ratings, listing requirements, redemption provisions, liquidation
preference and sinking fund requirements).
The several commitments of the underwriters to purchase Offered
Common Stock pursuant to the Terms Agreement shall be deemed to have been made
on the basis of the representations and warranties herein contained and shall
be subject to the terms and conditions herein set forth.
(b) Subject to the terms and conditions herein set forth, the
Company may grant, if so provided in the Terms Agreement relating thereto, an
option to the Underwriters, severally and not jointly, to purchase additional
shares of Common Stock to cover over-allotments, if any (the "Option Shares").
If the Terms Agreement so provides, the Underwriters may purchase up to the
amount of Option Shares set forth therein at the same price per share as is
applicable to the Offered Common Stock. As used herein, the term "Offered
Common Stock" shall include Option Shares. Such option, if granted, will
expire 30 days after the date of this Agreement, and may be exercised in whole
or in part from time to time only for the purpose of covering over-allotments
which may be made in connection with the offering of the Offered Common Stock
upon notice by the Representative to the Company setting forth the number of
Option Shares as to which the several Underwriters are then exercising the
option and the time and date of payment and delivery for such Option Shares.
Any such time and date of delivery shall be determined by the
Representative, but shall not be later than four business days and not be
earlier that two business days after the exercise of said option, nor in any
event prior to Closing Time, unless otherwise agreed upon by the
Representative and the Company.
If the option is exercised as to all or any portion of the
Option Shares, each Underwriter, acting severally and not jointly, will
purchase that proportion of the total number of Option Shares then being
purchased which the number of shares of Offered Common Stock each such
Underwriter has agreed to purchase as set forth in the Terms Agreement bears
to the total number of shares of Offered Common Stock, subject to such
adjustments as the Representative shall make to eliminate any sales or
purchases of fractional shares of Common Stock.
(c) Payment of the purchase price for any Offered Common Stock to
be purchased by the Underwriters shall be made to the Company at either the
Company's offices in Memphis, Tennessee or the office of Davis Polk &
Wardwell, 450 Lexington Avenue, New York, New York 10017, or at such other
place as shall be agreed upon by the Representative and the Company, at 10:00
A.M., New York City time, on the third business day (unless postponed in
accordance with the provisions of Section 10) following the date of the Terms
Agreement or at such other date, time or location specified in the Terms
Agreement, or as otherwise shall be agreed upon by the Representative and the
Company (such time and date being referred to as a "Closing Time").
Certificates for the Offered Common Stock shall be in
definitive form and registered in such names and in such denominations as the
Representative shall request in writing at least two business days prior to
the Closing Time. Delivery of the Offered Common Stock shall be made to the
Underwriters as specified in the Terms Agreement against payment by such
Underwriters of the purchase price thereof to the Company (or such other
person as the Company may direct) by wire transfer of immediately available
funds. Such Offered Common Stock will be made available for examination and
packaging by you in New York, New York, on or before the first business day
prior to the Closing Time or at such other time and place specified in the
Terms Agreement.
(d) The Company hereby agrees that, without the prior consent of
the Underwriters, it will not, during the period ending [30 days] after the
date of the Prospectus, (i) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock, or (ii)
enter into any swap or other arrangement that transfers to another, in whole
or in part, any of the economic consequences of ownership of the Common Stock,
whether any such transaction described in clause (i) above or this (ii) is to
be settled by delivery of Common Stock or such other securities, in cash or
otherwise.
The foregoing sentence shall not apply to (A) the Offered Common
Stock to be sold hereunder, or (B) the issuance by the Company of shares of
Common Stock, (i) upon the exercise of an employee stock option outstanding
on the date hereof under any of the Company's stock incentive plans, (ii) in
connection with any of the Company's employee benefit plans or (iii) in
connection with the Company's on-going acquisition program.
Section 3. Covenants of the Company.
The Company covenants with the Representative and with each
other Underwriter as follows:
(a) Prospectus Supplement. Immediately following the execution of
this Agreement, the Company will prepare a Prospectus Supplement in connection
with the offering of the Offered Common Stock. The Company will promptly
transmit copies of the Prospectus Supplement to the Commission for filing
pursuant to Rule 424 of the 1933 Act Regulations.
(b) Notice of Certain Events. The Company will notify the
Representative promptly (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the transmittal to the Commission for filing of
any supplement to the Prospectus or any document to be filed pursuant to the
1934 Act which will be incorporated by reference in the Prospectus, (iii) of
the receipt of any comments from the Commission with respect to the
Registration Statement, the Prospectus or the Prospectus Supplement relating
in any way to the offer and sale of the Offered Common Stock, (iv) of any
request by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectus or for additional information,
and (v) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose.
(c) Notice of Certain Proposed Filings. The Company will give
Representative notice of its intention to file or prepare any amendment to the
Registration Statement or any amendment or supplement to the Prospectus, and
will furnish the Representative with copies of any such amendment or
supplement or other documents proposed to be filed or prepared a reasonable
time in advance of such proposed filing or preparation, as the case may be.
(d) Copies of the Registration Statement and the Prospectus. The
Company will deliver to the Representative as many signed and conformed copies
of the Registration Statement (as originally filed) and of each amendment
thereto (including exhibits filed therewith or incorporated by reference
therein and documents incorporated by reference in the Prospectus) as the
Representative may reasonably request. The Company will furnish to the
Representative as many copies of the Prospectus (as amended or supplemented)
as the Representative shall reasonably request so long as the Underwriters are
required to deliver a Prospectus in connection with sales or solicitations of
offers to purchase the Offered Common Stock.
(e) Revisions of Prospectus -- Material Changes. If at any time
when the Prospectus is required by the 1933 Act to be delivered in connection
with sales of the Offered Common Stock any event shall occur or condition
exist as a result of which it is necessary, in the reasonable opinion of
counsel for the Company, to further amend or supplement the Prospectus in
order that the Prospectus will not include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser, or if it shall be necessary, in
the reasonable opinion of such counsel, at any such time to amend or
supplement the Registration Statement or the Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act Regulations the Company
will promptly prepare and file with the Commission such amendment or
supplement, whether by filing documents pursuant to the 1934 Act, the 1933 Act
or otherwise, as may be necessary to correct such untrue statement or omission
or to make the Registration Statement and Prospectus comply with such
requirements.
(f) Earnings Statements. The Company will make generally available
to its security holders as soon as practicable after the close of the period
covered thereby, an earnings statement (in form complying with the provisions
of Rule 158 under the 1933 Act) covering each twelve-month period beginning,
in each case, not later than the first day of the Company's fiscal quarter
next following the "effective date" (as defined in such Rule 158) of the
Registration Statement with respect to each sale of Offered Common Stock.
(g) Blue Sky Qualifications. The Company will endeavor, in
cooperation with the Underwriters, to qualify the Offered Common Stock for
offering and sale under the applicable securities laws of such states and other
jurisdictions of the United States as the Underwriters may designate, and will
maintain such qualifications in effect for so long as may be required for the
distribution of the Offered Common Stock; provided, however, that the Company
shall not be obligated to file any general consent to service of process or to
qualify as a foreign corporation or to subject itself to taxation as doing
business in any jurisdiction in which it is not otherwise required to be so
qualified. The Company will file such statements and reports as may be
required by the laws of each jurisdiction in which the shares of Offered
Common Stock have been qualified as provided above.
(h) 1934 Act Filings. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file promptly
all documents required to be filed with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the 1934 Act.
Section 4. Payment of Expenses.
The Company will pay all expenses incident to the performance
of its obligations under this Agreement, including:
(i) the preparation and filing of the Registration Statement
and all amendments thereto, the Preliminary Prospectus, if any, and the
Prospectus and any amendments or supplements thereto;
(ii) the filing of this Agreement;
(iii) the preparation, issuance, printing and delivery of the
Offered Common Stock;
(iv) the reasonable fees and disbursements of the Company's
accountants and counsel, and of the transfer agent;
(v) the qualification of the Offered Common Stock under
securities laws in accordance with the provisions of Section 3(g), including
filing fees and the reasonable fees and disbursements of counsel to the
Underwriters in connection therewith and in connection with the preparation of
any Blue Sky Survey; and
(vi) the printing and delivery to the Underwriters in
quantities as hereinabove stated of copies of the Registration Statement and
any amendments thereto, and of the Prospectus and any amendments or
supplements thereto;
(vii) costs and expenses related to the issuance and delivery
of the Offered Common Stock to the Underwriters; and
(viii) fees and expenses incident to listing of the Offered
Common Stock on the New York Stock Exchange.
If this Agreement is terminated by the Representative in
accordance with the provisions of Section 5 or clause (i) of Section 9 hereof,
the Company shall reimburse upon demand the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters that shall have been incurred by the Underwriters
in connection with the proposed purchase and sale of the Offered Common Stock.
Section 5. Conditions of Underwriters' Obligation.
The several obligations of the Underwriters to purchase the Offered
Common Stock pursuant to the Terms Agreement will be subject at all times to
the accuracy of the representations and warranties on the part of the Company
herein, to the accuracy of the statements of the Company's officers made in any
certificate furnished pursuant to the provisions hereof, to the performance and
observance by the Company of all covenants and agreements contained therein, or
in the Terms Agreement, on its part to be performed and observed and to the
following additional conditions precedent:
(a) Stop Order; Ratings Change; etc. At the Closing Time, (i) no
stop order suspending the effectiveness of the Registration Statement shall
have been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, (ii) the rating assigned as of the date of this
Agreement by any "nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g) under the 1933 Act
Regulations, to any debt securities of the Company shall not have been lowered
since the execution of this Agreement nor shall any such rating organization
have publicly announced that it has placed any debt securities of the Company
on what is commonly termed a "watch list" for possible downgrading, and (iii)
there shall not have come to the attention of the Representatives any facts
that would cause the Representative to believe that the Prospectus, including
the Prospectus Supplement, at the time it was required to be delivered to a
purchaser of the Offered Common Stock, contained an untrue statement of a
material fact or omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances existing at such
time, not misleading.
(b) Legal Opinions. At the Closing Time, the Representative shall
have received the following documents:
(1) Opinion of Company Counsel. The opinion of the Vice
President-General Counsel and Secretary of the Company or the Assistant
Secretary and Corporate Counsel, dated as of such date, in form and substance
reasonably satisfactory to the Representative, to the effect as set forth in
Exhibit A.
(2) Opinion of Counsel to the Underwriters. The opinion of
__________________________________, counsel to the Underwriters, with respect
to such matters as the Representative may reasonably request.
(c) Officer Certificate. At the Closing Time, there shall not have
been, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change in the
condition (financial or otherwise) of the Company, or in the earnings or
business affairs of the Company; and the Representative shall have received a
certificate of any Vice President of the Company, dated as of the Closing
Time, to the effect (i) that there has been no such material adverse change,
(ii) that the other representations and warranties of the Company contained in
Section 1 are true and correct with the same force and effect as though
expressly made at and as of the date of such certificate, except to the extent
that such representations and warranties expressly relate to an earlier date or
later date (in which case such representations and warranties are true and
correct on and as of such earlier date or will be true and correct on and as of
such later date, as the case may be), (iii) that the Company has made or
caused to be made any required filing of the Prospectus pursuant to Rule
424(b) in the manner and within the time period required by Rule 424(b), and
(iv) that the Company has complied with all material agreements and satisfied
all material conditions on its part to be performed or satisfied at or prior
to the date of such certificate. The officer signing and delivering this
certificate may rely upon the best of his or her knowledge as to proceedings
threatened.
(d) Comfort Letter. At the time of the execution of the Terms
Agreement and at the Closing Time, the Representative shall have received a
letter from KPMG Peat Marwick LLP or their successors as the Company's
independent accountants (the "Independent Accountants"), dated as of the date
of the Terms Agreement and of the Closing Time, as the case may be, in form
and substance satisfactory the Representative to the effect that:
(i) they are independent public accountants within the
meaning of the 1933 Act and the 1933 Act Regulations;
(ii) in their opinion the Company's financial statements and
schedules included or incorporated by reference in the Registration Statement
and Prospectus and covered by their reports included or incorporated therein
comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations or the 1934 Act and
the 1934 Act Regulations, as the case may be;
(iii) they have conducted reviews of the unaudited interim
consolidated financial information of the Company included in the Company's
Quarterly Reports on Form 10-Q incorporated in the Registration Statement and
Prospectus in compliance with the standards for such reviews promulgated by
the American Institute of Certified Public Accountants;
(iv) on the basis of a reading of the financial statements and
schedules of the Company included or incorporated in the Prospectus and the
Registration Statement, and the latest available unaudited interim financial
statements of the Company, inquiries of officials of the Company responsible
for financial and accounting matters, and other specified procedures and
inquiries, nothing has come to their attention that caused them to believe
that:
(A) the unaudited financial statements of the Company
included or incorporated in the Prospectus and the Registration Statement do
not comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations or the 1934 Act and
the 1934 Act Regulations thereunder, as the case may be, or that such
unaudited financial statements are not presented fairly in conformity with
generally accepted accounting principles;
(B) with respect to the period subsequent to the date
of the most recent financial statements incorporated in the Registration
Statement and the Prospectus, as of a specified date not more than five
business days prior to the date of delivery of such letter, there has been any
change in the common or preferred stock or long-term debt of the Company or,
as of such date, there has been any decrease in assets or common stockholders'
investment, in each case as compared with amounts shown in the most recent
consolidated balance sheet of the Company included or incorporated in the
Registration Statement and the Prospectus, except in each case for changes or
decreases which the Prospectus discloses have occurred or may occur or which
are described in such letter; or
(C) for the period from the date of the most recent
financial statements incorporated in the Registration Statement and the
Prospectus to such specified date, there was any decrease in operating
revenues, operating income, income before taxes or net income of the Company
in each case as compared with the comparable period of the preceding year,
except in each case for decreases which the Prospectus discloses have occurred
or may occur or which are described in such letter; and
(v) in addition to their audit referred to in their reports
included or incorporated by reference in the Registration Statement and the
Prospectus and the reviews, inquiries and procedures referred to in clauses
(iii) and (iv) above, such letter shall state that KPMG Peat Marwick LLP has
performed other specified procedures, with respect to certain numerical data
and information included or incorporated in the Registration Statement and the
Prospectus, as are requested by the Representative and specified in such
letter and have found such data and information to be in agreement with the
accounting records of or analyses prepared by the Company.
(e) Other Documents. At the Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as
such counsel may reasonably require for the purpose of enabling such counsel
to pass upon the issuance and sale of Offered Common Stock as herein
contemplated and related proceedings, or in order to evidence the accuracy and
completeness of any of the representations and warranties, or the fulfillment
of any of the conditions, herein contained; and all proceedings taken by the
Company in connection with the issuance and sale of Offered Common Stock as
herein contemplated shall be satisfactory in form and substance to the
Representative.
(f) "Lock-up". The "lock-up" agreements, each substantially in the
form of Exhibit B hereto, between the Underwriters and certain stockholders,
officers and directors of the Company relating to sales and certain other
dispositions of shares of Common Stock or certain other securities, delivered
to the Representatives on or before the date hereof, shall be in full force and
effect on the Closing Date.
Section 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, arising out of any untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto), or the
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of or
based upon any untrue statement of a material fact contained in the Prospectus
(or any amendment or supplement thereto) or the omission therefrom of a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, to the extent of the aggregate amount paid in settlement
of any litigation, or investigation or proceeding by any governmental agency
or body, commenced or threatened, or of any claim whatsoever arising out of or
based upon any such untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, reasonably
incurred in investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever arising out of or based upon any such
untrue statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representative expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto),
or made in reliance upon the Statements of Eligibility and Qualification of
Trustees (Form T-1) under the 1939 Act filed as exhibits to the Registration
Statement; and provided, further, that the foregoing indemnity agreement, with
respect to any Preliminary Prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased Offered Common Stock, or any person controlling such
Underwriter, if a copy of the Prospectus (as then amended or supplemented if
the Company shall have furnished any amendments or supplements thereto) was not
sent or given by or on behalf of such Underwriter to such person, if required
by law so to have been delivered, at or prior to the written confirmation of
the sale of the Offered Common Stock to such person, and if the Prospectus (as
so amended or supplemented) would have cured the defect giving rise to such
losses, claims, damages or liabilities.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions made in the Registration
Statement (or any amendment thereto) or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriters through the
Representative expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of such action. In no
event shall the indemnifying parties be liable for the fees and expenses of
more than one counsel (in addition to any local counsel) separate from their
own counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances.
Section 7. Contribution.
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 6 is
for any reason held to be unenforceable by the indemnified parties although
applicable in accordance with its terms, the Company and the Underwriters of
each offering of Offered Common Stock shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated
by said indemnity agreement incurred by the Company and one or more of the
Underwriters in respect of such offering, as incurred, in such proportions
that the Underwriters are responsible for that portion represented by the
percentage that the underwriting discount appearing on the cover page of the
Prospectus in respect of such offering bears to the initial public offering
price appearing thereon and the Company is responsible for the balance;
provided, however, that no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act shall have the
same rights to contribution as such Underwriter, and each director of the
Company, each officer of the Company who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act shall have the same rights to contribution as the Company.
Section 8. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company, and shall survive each
delivery of and payment for any of the Offered Common Stock.
Section 9. Termination of Agreement.
The Representative may terminate this Agreement, immediately upon
notice to the Company, at any time prior to the Closing Time if: (i) there has
been, since the date hereof or since the respective dates as of which
information is given in the Registration Statement, any material adverse change
in the condition, financial or otherwise, or in the earnings or business
affairs of the Company, (ii) there shall have occurred any material adverse
change in the financial markets in the United States or any outbreak or
escalation of hostilities or other national or international calamity or
crisis, the effect of which shall be such as to make it, in your judgment of
the Representative, impracticable to market the Offered Common Stock or enforce
contracts for the sale of the Offered Common Stock, or (iii) trading in any
securities of the Company shall have been suspended by the Commission or a
national securities exchange, or if trading generally on either the American
Stock Exchange or the New York Stock Exchange shall have been suspended, or
minimum or maximum prices for trading shall have been fixed, or maximum ranges
for prices for securities shall have been required, by either of said exchanges
or by order of the Commission or any other governmental authority, or if a
banking moratorium shall have been declared by either federal or New York
authorities.
In the event of any termination of this Agreement, the covenant set
forth in Section 3(f) hereof, the provisions of Section 4 hereof, the indemnity
and contribution agreements set forth in Sections 6 and 7 hereof, and the
provisions of Sections 8 and 13 hereof shall remain in effect.
Section 10. Default by One Underwriter.
If any Underwriter shall fail at the Closing Time to purchase the
Offered Common Stock which it is obligated to purchase hereunder (the
"Defaulted Securities"), and the aggregate amount of Defaulted Securities is
not more than one-tenth of the aggregate amount of the Offered Common Stock to
be purchased on such date, the other Underwriters shall be obligated severally
in the proportions that the amount of the Offered Common Stock set forth
opposite their respective names in Schedule I hereto bears to the aggregate
amount of Offered Common Stock set forth opposite the names of all such
non-defaulting underwriters to purchase the Defaulted Securities; provided that
in no event shall the amount of Defaulted Securities that any Underwriter has
agreed to purchase pursuant to this Agreement be increased by an amount in
excess of one-ninth of such amount of Offered Common Stock without the written
consent of such Underwriter. If the aggregate amount of Defaulted Securities
is more than one-tenth of the aggregate amount of the Offered Common Stock to
be purchased on the Closing Date, and arrangements satisfactory to the
Underwriters and the Company for the purchase of such Defaulted Securities are
not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriters or the
Company.
No action taken pursuant to this Section shall relieve a defaulting
Underwriter from liability in respect of its default under this Agreement.
In the event of any such default which does not result in a
termination of this Agreement, either the non-defaulting Underwriters or the
Company shall have the right to postpone the Closing Time for a period not
exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or arrangements.
Section 11. Notices.
All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if mailed, delivered by an express
courier service or transmitted by any facsimile communication. Notices to the
Underwriters shall be directed to the Representative at the address specified
in the Terms Agreement, with copies thereof directed to [Designated
Underwriters' counsel]. Notices to the Company shall be directed to it at 8155
T&B Boulevard, Memphis, Tennessee 38125, Attention: Vice President-Finance and
Treasurer, with copies thereof directed to the Legal Department of the Company
at 8155 T&B Boulevard, Memphis, Tennessee 38125, Attention:
Vice-President-General Counsel and Secretary.
Section 12. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Company and any Underwriter who becomes a party hereto and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
parties hereto and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or
in respect of this Agreement or any provision herein contained. This Agreement
and all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties hereto their respective successors and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Offered Common Stock from any Underwriter shall be deemed to be
a successor by reason merely of such purchase.
Section 13. Governing Law.
This Agreement and the rights and obligations of the parties created
hereby and thereby shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and to be performed
in such state. Any suit, action or proceeding brought by the Company against
an Underwriter in connection with or arising under this Agreement shall be
brought solely in the state or federal court of appropriate jurisdiction
located in the Borough of Manhattan, The City of New York.
Exhibit A
Form of Opinion of Company Counsel
----------------------------------
____________, ______
[UNDERWRITERS]
Re: Thomas & Betts Corporation
Common Stock (the "Offered Common Stock")
-----------------------------------------
Ladies and Gentlemen:
This opinion is directed to the Underwriters pursuant to
Section 5(b)(1) of the Underwriting Agreement Basic Provisions and the Terms
Agreement (of which the Underwriting Agreement Basic Provisions is Annex A
thereto) dated ________________, 199__ (collectively, the "Underwriting
Agreement"), among the Company and you, with respect to the offer and sale of
the Offered Common Stock with the Preferred Stock Purchase Rights attached.
All terms defined or used in the Underwriting Agreement have the same meaning
when used herein, unless otherwise noted.
I am Vice President-General Counsel and Secretary of the Company
and have acted as such in connection with the Offered Common Stock and the
Underwriting Agreement. I or attorneys under my supervision have made such
examination and investigation as we have deemed necessary in order to give the
following opinion.
Based on the foregoing, it is my opinion that:
(i) The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Tennessee and has
full corporate power and authority under such laws to own its properties and to
conduct its business as described in the Prospectus; the Company is duly
qualified to do business and is in good standing in each jurisdiction in which
it owns or leases real property or in which the conduct of its business
requires such qualification, except for such instances which in the aggregate
will not have a material adverse effect on the Company;
(ii) Each subsidiary of the Company which is a significant
subsidiary as defined in Rule 405 of Regulation C of the 1933 Act Regulations
(each a "Significant Subsidiary") has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction
of its incorporation, has corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Registration Statement, and, to the best of my knowledge, is duly qualified to
do business and is in good standing in each jurisdiction in which such
qualification is required, except where the failure to so qualify would not
have a material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise; all of the issued and outstanding
capital stock of each Significant Subsidiary has been duly authorized and
validly issued and is fully paid and non-assessable, and all of such capital
stock, except for directors' qualifying shares, is owned by the Company,
directly or through subsidiaries, free and clear of any mortgage, pledge,
lien, encumbrance, claim or equity;
(iii) Except for matters described in the Prospectus (as to which I
can express no opinion at this time concerning the Company's liability (if
any) or the effect of any adverse determination upon the business, condition
(financial or otherwise) or operations of the Company), there is no pending,
or to my knowledge, threatened action or proceeding before any court or
administrative agency which individually (or in the aggregate in the case of
any group of related lawsuits) is expected to have a material adverse effect
on the financial condition of the Company;
(iv) The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus.
(v) The Offered Common Stock has been duly authorized and, when
issued and delivered in accordance with the terms of this Agreement, will be
validly issued, fully paid and non-assessable, and the issuance of such shares
will not be subject to any preemptive or similar rights. The Preferred Stock
Purchase Rights have been duly authorized and, when issued and delivered in
accordance with the terms of this Agreement and the Rights Agreement, will be
validly issued, fully paid and non-assessable, and the issuance of such Rights
will not be subject to any preemptive or similar rights.
(vi) The Company possesses all permits, approvals, franchises and
other rights which are requisite for the conduct of its business as described
in the Prospectus or for the actions contemplated by the Underwriting Agreement
and the offering contemplated by the Prospectus;
(vii) I have reviewed or caused to be reviewed by attorneys under my
supervision the Registration Statement, the Prospectus and each amendment and
supplement thereto (including the documents incorporated by reference) and
have no reason to believe that, as of their respective effective or issue
dates, as of the date of the Terms Agreement or as of the Closing Time, either
the Registration Statement or the Prospectus or any such amendment or
supplement (or any such documents incorporated by reference) contained an
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;
(viii) I do not know of any statute or regulation or legal or
governmental proceeding required to be described in the Prospectus which is
not described as required, nor of any contract or document of a character
required to be described in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement which is not described and
filed as required; and the descriptions in the Registration Statement and the
Prospectus of the contracts and other documents therein described are accurate
and fairly present the information required to be shown;
(ix) The execution and delivery by the Company of the Underwriting
Agreement and the consummation by the Company of the transactions herein and
therein contemplated and compliance with the terms of the Underwriting
Agreement do not and will not conflict with or result in a breach of any of the
terms of the Charter or By-laws of the Company, and will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan, credit or note
agreement, lease or other agreement or instrument material to the Company to
which the Company is a party or by which it or any or its properties are
bound, or any existing applicable law, rule, regulation, judgment, order or
decree of any government, governmental instrumentality or court, having
jurisdiction over the Company or any of its properties;
(x) No authorization, approval, consent or license of any
regulatory body or authority (other than under the 1933 Act and the securities
or Blue Sky laws of the various states) is required for the valid
authorization, issuance, sale and delivery of the Offered Common Stock as
herein contemplated or the valid authorization, execution, delivery and
performance by the Company of the Underwriting Agreement or the consummation
by the Company of the transactions contemplated herein or therein, or, if so
required, all such authorizations, approvals, consents and licenses,
specifying the sale, have been obtained and are in full force and effect;
(xi) The Registration Statement has become effective under the 1933
Act and, to the best of my knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or contemplated under the
1933 Act; the Registration Statement and the Prospectus, and each amendment
or supplement thereto (except for the financial statements and schedules
included therein, as to which I express no opinion), comply as to form in all
material respects to the requirements of the 1933 Act and the 1933 Act
Regulations and, as to documents incorporated therein, to the requirements of
the 1934 Act and the 1934 Act Regulations in effect at the time such documents
were filed with the Commission; and
(xii) The Underwriting Agreement has been duly and validly
authorized, executed and delivered by the Company and constitutes a valid and
binding agreement of the Company, enforceable in accordance with its terms,
except as limited by bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting enforcement of creditors'
rights or by general equity principles and subject to any principles of public
policy limiting the right to enforce the indemnification and contribution
provisions contained in Sections 6 and 7 of the Underwriting Agreement.
In rendering the foregoing opinion, we have assumed that (i) all
signatures on all documents examined by us are genuine and that where any such
signature (other than a signature purporting to have been made on behalf of
the Company) purports to have been made in a corporate, governmental,
fiduciary or other capacity, the person who affixed such signature had the due
authority to do so, (ii) certain factual matters contained in certificates of
public officials are accurate, true and correct, and (iii) photostat copies of
such documents, records and certificates conform to the originals.
This opinion is intended solely for the benefit of the
Underwriters and is not to be relied on by, and no copies of it are to be
delivered to, any other person without my prior written consent, except that
Underwriters' counsel may rely upon this opinion as to all matters of
Tennessee law in rendering its opinion of even date herewith. I am not
assuming any professional responsibility to any other person by rendering this
opinion. It is understood that this opinion speaks as of the date given,
notwithstanding any delivery as contemplated above on any other date.
Very truly yours,
Exhibit B
[Form of Lock-up Letter]
_____________, 199__
[UNDERWRITERS]
[ADDRESS]
Ladies and Gentlemen:
The undersigned understands that the Underwriters propose to
enter into an underwriting agreement (the "Underwriting Agreement") with
Thomas & Betts Corporation, a Tennessee corporation (the "Company"), providing
for the public offering (the "Public Offering") by the several Underwriters,
(the "Underwriters"), of ______ shares (the "Shares") of the Common Stock par
value $.10 per share of the Company (the "Common Stock") with Preferred Stock
Purchase Rights attached.
To induce the Underwriters that may participate in the Public
Offering to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior consent of the Underwriters,
it will not, during the period commencing on the date hereof and ending 30
days after the date of the Prospectus relating to the Public Offering (the
"Prospectus"), (1) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase, or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock (whether such
shares or any such securities are now owned by the undersigned or are
hereafter acquired), or (2) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of
ownership of the Common Stock, whether any such transaction described in
clause (1) above or in this (2) is to be settled by delivery of Common Stock
or such other securities, in cash or otherwise.
The foregoing sentence shall not apply to: (i) the sale of any
Shares to the Underwriters pursuant to the Underwriting Agreement, (ii) gifts,
(iii) stock grants in connection with the Company's benefit plans, (iv) the
exercise of a stock option under any of the Company's stock incentive plans
and (v) the sale of any shares in connection with the Company's acquisition
program. In addition, the undersigned agrees that, without the prior consent
of the Underwriters, it will not, during the period commencing on the date
hereof and ending 30 days after the date of the Prospectus, make any demand
for or exercise any right with respect to, the registration of any shares of
Common Stock or any security convertible into or exercisable or exchangeable
for Common Stock.
Whether or not the Public Offering actually occurs depends on a
number of factors, including market conditions. Any Public Offering will only
be made pursuant to an Underwriting Agreement, the terms of which are subject
to negotiation between the Company and the Underwriters.
Very truly yours,
______________________________
(Name)
______________________________
(Address)
Exhibit 4(a)
- ------------------------------------------------------------------------------
TRUST INDENTURE
-------------------------
Dated as of August __, 1998
between
THOMAS & BETTS CORPORATION, as Issuer
and
THE BANK OF NEW YORK, as Trustee
-------------------------
Debt Securities
- ------------------------------------------------------------------------------
Reconciliation and tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act") and Indenture
Indenture
Trust Indenture Act Section Section
-------------------------- ---------
Section 310 (a)(1)................ 6.09
(a)(2)................ 6.09
(b)................... 6.10
Section 311 (b)(4)................ 6.13
(b)(6)................ 6.13
Section 312 (a)................... 7.01
(b)................... 7.02
(c)................... 7.02
Section 313 (a)................... 7.03
(b)(2)................ 7.03
(c)................... 7.03
(d)................... 7.03
Section 314 (a)................... 7.04
(c)(1)................ 1.02
(c)(2)................ 1.02
(e)................... 1.02
(f)................... 1.02
Section 316 (a) (last sentence)... 1.01
(a)(1)(A)............. 5.02, 5.12
(a)(1)(B)............. 5.13
(b)................... 5.08
Section 317 (a)(1)................ 5.03
(a)(2)................ 5.04
(b)................... 10.03
Section 318 (a)................... 1.07
- ---------------
This reconciliation and tie shall not, for any purpose, be deemed to be a part
of the Indenture.
NOTE: Section 318(c) of the Trust Indenture Act provides that the provisions
of Sections 310-317 are a part of and govern every qualified indenture,
whether or not physically contained therein.
TABLE OF CONTENTS
Page
----
ARTICLE 1
Definitions and Other Provisions of General Application
Section 1.1. Definitions.................................................. 1
Section 1.2. Compliance Certificates and Opinions......................... 9
Section 1.3. Form of Documents Delivered to Trustee....................... 9
Section 1.4. Acts of Holders.............................................. 10
Section 1.5. Notes, Etc. to Trustee and Company........................... 11
Section 1.6. Notice to Holders; Waiver.................................... 11
Section 1.7. Conflict with Trust Indenture Act............................ 12
Section 1.8. Effect of Headings and Table of Contents..................... 12
Section 1.9. Successors and Assigns....................................... 12
Section 1.10. Separability Clause.......................................... 12
Section 1.11. Benefits and Indenture....................................... 12
Section 1.12. Governing Law................................................ 13
Section 1.13. Legal Holidays............................................... 13
Section 1.14. Language of Notices.......................................... 13
Section 1.15. Counterparts................................................. 13
ARTICLE 2
Security Forms
Section 2.1. Forms Generally.............................................. 13
Section 2.2. Form of Trustee's Certificate of Authentication.............. 14
Section 2.3. Global Securities............................................ 14
ARTICLE 3
The Securities
Section 3.1. Amount Unlimited; Issuable in Series......................... 15
Section 3.2. Denominations................................................ 19
Section 3.3. Execution, Authentication, Delivery and Dating............... 19
Section 3.4. Temporary Securities......................................... 21
Section 3.5. Registration, Transfer and Exchange.......................... 21
Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities............. 24
Section 3.7. Payment of Interest; Interest Rights Preserved............... 25
Section 3.8. Persons Deemed Owners........................................ 26
Section 3.9. Cancellation................................................. 27
Section 3.10. Computation of Interest...................................... 27
Section 3.11. CUSIP Numbers................................................ 27
ARTICLE 4
Satisfaction and Discharge
Section 4.1. Satisfaction and Discharge of Indenture...................... 28
Section 4.2. Application of Trust Money................................... 29
ARTICLE 5
Remedies
Section 5.1. Events of Default............................................ 30
Section 5.2. Acceleration of Maturity; Rescission and Annulment........... 31
Section 5.3. Collection of Indebtedness and Suits for Enforcement
by Trustee................................................. 32
Section 5.4. Trustee May File Proofs of Claim............................. 33
Section 5.5. Trustee May Enforce Claims Without Possession of
Securities................................................. 34
Section 5.6. Application of Money Collected............................... 34
Section 5.7. Limitation on Suits.......................................... 34
Section 5.8. Unconditional Right of Holders to Receive Principal,
Premium and Interest....................................... 35
Section 5.9. Restoration of Rights and Remedies........................... 35
Section 5.10. Rights and Remedies Cumulative............................... 36
Section 5.11. Delay or Omission Not Waiver................................. 36
Section 5.12. Control by Holders........................................... 36
Section 5.13. Waiver of Past Defaults...................................... 36
Section 5.14. Undertaking for Costs........................................ 37
Section 5.15. Waiver of Stay or Extension Laws..............................37
ARTICLE 6
The Trustee
Section 6.1. Certain Duties and Responsibilities.......................... 38
Section 6.2. Notice of Defaults........................................... 39
Section 6.3. Certain Rights of Trustee.................................... 39
Section 6.4. Not Responsible for Recitals or Issuance of
Securities................................................ 40
Section 6.5. May Hold Securities.......................................... 41
Section 6.6. Money Held in Trust.......................................... 41
Section 6.7. Compensation and Reimbursement............................... 41
Section 6.8. Intentionally Left Blank..................................... 42
Section 6.9. Corporate Trustee Required; Eligibility...................... 42
Section 6.10. Resignation and Removal; Appointment of
Successor.................................................. 43
Section 6.11. Acceptance of Appointment by Successor....................... 45
Section 6.12. Merger, Conversion, Consolidation or Succession to
Business................................................... 46
Section 6.13. Preferential Claims.......................................... 46
Section 6.14. Appointment of Authenticating Agent.......................... 47
ARTICLE 7
Holders' Lists and Reports by Trustee and Company
Section 7.1. Company to Furnish Trustee Names and Addresses of
Holders.................................................... 49
Section 7.2. Preservation of Information; Communications to
Holders.................................................... 49
Section 7.3. Reports by Trustee........................................... 51
Section 7.4. Reports by Company........................................... 51
ARTICLE 8
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.1. Company May Consolidate, Etc. on Certain
Terms...................................................... 52
Section 8.2. Successor Corporation Substituted............................ 53
ARTICLE 9
Supplemental Indentures
Section 9.1. Supplemental Indentures Without Consent of
Holders.................................................... 53
Section 9.2. Supplemental Indentures with Consent of Holders.............. 54
Section 9.3. Execution of Supplemental Indentures......................... 55
Section 9.4. Effect of Supplemental Indentures............................ 56
Section 9.5. Conformity with Trust Indenture Act.......................... 56
Section 9.6. Reference in Securities to Supplemental Indentures........... 56
ARTICLE 10
Covenants
Section 10.1. Payment of Principal, any Premium, Interest and
Additional Amounts........................................ 56
Section 10.2. Maintenance of Office or Agency............................. 56
Section 10.3. Money for Securities Payments to be Held in
Trust..................................................... 57
Section 10.4. Corporate Existence......................................... 59
Section 10.5. Statement as to Default..................................... 59
Section 10.6. Additional Amounts.......................................... 59
Section 10.7. Calculation of Original Issue Discount...................... 60
ARTICLE 11
Redemption of Securities
Section 11.1. Applicability of Article.................................... 60
Section 11.2. Election to Redeem; Notice to Trustee....................... 60
Section 11.3. Selection by Trustee of Securities to be Redeemed........... 61
Section 11.4. Notice of Redemption........................................ 61
Section 11.5. Deposit of Redemption Price................................. 62
Section 11.6. Securities Payable on Redemption Date....................... 62
Section 11.7. Securities Redeemed in Part................................. 63
ARTICLE 12
Intentionally Left Blank
ARTICLE 13
Defeasance and Covenant
Section 13.1. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance......................... 63
Section 13.2. Defeasance and Discharge.................................... 64
Section 13.3. Covenant Defeasance......................................... 64
Section 13.4. Conditions to Defeasance or Covenant Defeasance............. 65
Section 13.5. Deposited Money and Government Obligations to be
Held in Trust; Other Miscellaneous Provisions............. 67
ARTICLE 14
Sinking Funds
Section 14.1. Applicability of Article.................................... 68
Section 14.2. Satisfaction of Sinking Fund Payments with
Securities................................................ 68
Section 14.3. Redemption of Securities for Sinking Fund................... 69
ARTICLE 15
Securities in Foreign Currencies
Section 15.1. Applicability of Article.................................... 69
SCHEDULE I Supplemental Indenture
EXHIBIT A Form of Debt Security
TRUST INDENTURE
INDENTURE, dated as of August 1, 1998 between Thomas & Betts
Corporation, a Tennessee corporation (the "Company") and The Bank of New York,
a New York banking corporation, as trustee (the "Trustee").
RECITALS
WHEREAS, the Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of its
senior unsecured debentures, bonds, notes or other evidences of indebtedness
(herein called the "Securities"), unlimited as to principal amount, to bear
such rates of interest, to mature at such time or times, to be issued in one
or more series and to have such other provisions as shall be fixed as
hereinafter provided;
WHEREAS, the Company has duly authorized the execution and
delivery of this Indenture. All things necessary to make this Indenture a
valid agreement of the Company, in accordance with its terms, have been done;
and
WHEREAS, this Indenture is subject to the provisions of the
Trust Indenture Act of 1939, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder that are required
to be part of this Indenture and, to the extent applicable, shall be governed
by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as herein defined) thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders
of the Securities or of any series thereof, as follows:
ARTICLE 1
Definitions and Other Provisions of General Application
Section 1.1. Definitions. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" or "GAAP" with respect to any
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted in the United States of America as of the
date of such computation; and
(d) the words "herein," "hereof," "hereto" 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.
Certain terms used principally in certain Articles hereof are
defined in those Articles.
"Act" when used with respect to any Holder, has the meaning
specified in Section 1.4.
"Additional Amounts" means any additional amounts which are
required hereby or by any Security, under circumstances specified herein or
therein, to be paid by the Company in respect of certain taxes, assessments or
other governmental charges imposed on Holders specified therein and which are
owing to such Holders.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the
Trustee to act on behalf of the Trustee to authenticate Securities of one or
more series.
"Board of Directors" means the board of directors of the
Company or any duly authorized committee of the board of directors of the
Company.
"Board Resolution" means a copy of one or more resolutions
certified by the Secretary or Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and effect on
the date of such certification, delivered to the Trustee.
"Business Day" means any day other than Saturday, Sunday or
other day on which banking institutions in New York are authorized or
obligated by law to close.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Company" means Thomas & Betts Corporation or any successor
Corporation which shall have become such under this Indenture.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by its President or any Vice
President and delivered to the Trustee.
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country or the confederation which
issued such Foreign Currency and for the settlement of transactions by a
central bank or other public institutions of or within the international
banking community, (ii) the ECU both within the European Monetary System and
for the settlement of transactions by public institutions of or within the
European Union or (iii) any currency unit or composite currency other than the
ECU for the purposes for which it was established.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee at which at any particular time its corporate trust
business shall be principally administered, which office at the date of
original execution of this Indenture is located at 101 Barclay Street, New
York, New York 10286.
"Corporation" includes corporations and limited liability
companies and, except for purposes of Article Eight, associations, companies
and business trusts.
"Currency" with respect to any payment, deposit or other
transfer in respect of the principal of or any premium or interest on or any
Additional Amounts with respect to any Security, means Dollars or the Foreign
Currency, as the case may be, in which such payment, deposit or other transfer
is required to be made by or pursuant to the terms hereof or such Security and,
with respect to any other payment, deposit or transfer pursuant to or
contemplated by the terms hereof or such Security, means Dollars.
"CUSIP Number" means the alphanumeric designation assigned to a
Security by Standard & Poor's Ratings Group, CUSIP Service Bureau.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depository" means, with respect to the Securities of any series
issuable upon original issuance in whole or in part in the form of one or more
Global Securities, the clearing agency registered under the Securities Exchange
Act of 1934, as amended, specified for that purpose as contemplated by Section
3.1.
"Dollars" means a dollar or other equivalent unit of legal
tender for payment of debts in the United States of America.
"ECU" means the European Currency Units as defined and revised
from time to time by the Counsel of the European Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the
European Community.
"European Union" means the European Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 5.1.
"Foreign Currency" means any currency, currency unit or
composite currency, including, without limitation, the ECU, issued by the
government of one or more countries other than the United States or by any
recognized confederation or association of such governments.
"Global Security" means a Security bearing the legend specified
in Section 2.3 evidencing all or part of a series of Securities, issued to the
Depository with respect to such series or its nominee and registered in the
name of such Depository or nominee.
"Government Obligations" means securities which are (x) direct
obligations of the United States of America or the other government or
governments in the confederation which issued the Foreign Currency in which
the principal of or any premium or interest on any Security or any Additional
Amounts in respect thereof shall be payable, in each case where the payment
or payments thereunder are supported by the full faith and credit of such
government or governments, or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America or such other governments or governments, in each case where the
payment or payments thereunder are unconditionally guaranteed as a full faith
and credit obligation by the United States of America or such other
governments or governments, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank as custodian with respect to any such
Government Obligation or a specific payment of principal of or interest on any
such Government Obligation held by such custodian for the account of the
holder of a depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to
the holder of such depository receipt from any amount received by the
custodian in respect to the Government Obligation or the specific payment of
principal of or interest on the Government Obligation evidenced by such
depository receipt.
"Holder" means a Person in whose name a Security is registered
in the Security Register.
"Indenture" means this instrument as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms
of each particular series of Securities established as contemplated by Section
3.1.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity may be more or
less than the principal face amount thereof at original issuance.
"Interest" with respect to any Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity and, when used with respect to a Security which provides for the
payment of Additional Amounts pursuant to Section 10.6, includes such
Additional Amounts.
"Interest Payment Date" with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Maturity" with respect to any Security, means the date on
which the principal of such Security, or an installment of principal, becomes
due and payable as therein or herein provided, whether at the Stated Maturity
or by declaration of acceleration, notice of redemption or repurchase or
otherwise and includes the Redemption Date.
"Officer's Certificate" means a certificate signed by the
President or any Vice President of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
be an employee of or of counsel to the Company, or other counsel reasonably
satisfactory to the Trustee.
"Original Issue Discount Security" means any Security issued
pursuant to this Indenture which provides for declaration of an amount less
than the principal face amount thereof to be due and payable upon acceleration
of the Maturity pursuant to Section 5.2.
"Outstanding" when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities for whose payment at the Maturity thereof money
in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust
by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities;
provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant
to this Indenture or provision therefor satisfactory to
the Trustee has been made;
(iii) Securities for whose payment or redemption money or
Government Obligations as contemplated by Section 13.10
in the necessary amount have been theretofore deposited
with the Trustee (or another trustee satisfying the
requirements of Section 6.9) in trust for the Holders
of such Securities in accordance with Section 13.5; and
(iv) Securities which have been paid pursuant to Section 3.6
or in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this
Indenture, unless there shall have been presented to
the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose
hands such Securities are valid obligations of the
Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, (A)
the principal amount of an Original Issue Discount Security that shall be
deemed to be Outstanding shall be equal to the amount of the principal
thereof that would be due and payable as of the date of such determination
upon acceleration of the Maturity thereof pursuant to Section 5.2, (B) the
principal amount of any Indexed Security that may be counted in making such
determination and that shall be deemed outstanding for such purpose shall
be equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided in this Indenture, (C) the principal
amount of a Security denominated in a Foreign Currency shall be the Dollar
equivalent, determined on the date of original issuance of such Security,
of the principal amount (or, in the case of an Original Issue Discount
Security, the Dollar equivalent on the date of original issuance of such
Security of the amount determined as provided in (A) above) of such
Security, and (D) Securities owned by the Company or any other obligor or
any Affiliate of the Company or of such other obligor shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which
the Trustee knows to be 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 Company or any other obligor or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of (and premium, if any) or interest on any Securities on behalf
of the Company.
"Person" means any individual, Corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Place of Payment" with respect to the Securities of any
series, means the place where the principal of (and premium, if any), interest
on, and Additional Amounts with respect to, the Securities of that series are
payable as provided in or pursuant to this Indenture or such Securities.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 3.6 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Redemption Date" with respect to any Security or portion
thereof to be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture or such Security.
"Redemption Price" with respect to any Security or portion
thereof to be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture or such Security.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified in or
pursuant to this Indenture or such Security as the "Regular Record Date."
"Responsible Officer" means any officer of the Trustee in its
Corporate Trust Office and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of
knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture, provided, however, that if at any time there
is more than one Person acting as Trustee under this Indenture, "Securities"
with respect to any such Person shall mean securities authenticated and
delivered under this Indenture, exclusive, however, of Securities of any
series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Special Record Date" for the payment of any Defaulted Interest
on any Security means a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity" with respect to any Security or any
installment of principal thereof or interest thereon or any Additional
Amounts, means the date established by or pursuant to this Indenture or such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is, or such Additional Amounts are, due
and payable.
"Subsidiary" means any Corporation of which at the time of
determination the Company or one or more Subsidiaries owns or controls,
directly or indirectly, more than 50% of the shares of voting stock. For the
purposes of this definition, "voting stock" means stock which ordinarily has
voting power for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder.
If at any time there is more than one such Person, "Trustee" shall mean such
Person and as used with respect to the Securities of any series shall mean the
Trustee with respect to Securities of such series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this instrument was executed,
except as provided in Section 9.5.
"Vice President" when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title "vice president."
Section 1.2. Compliance Certificates and Opinions. Except as
otherwise expressly provided in this Indenture, upon any application or request
by the Company to the Trustee to take any action under any provision of this
Indenture, the Company shall furnish to the Trustee an Officer's Certificate
stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with or an Opinion of
Counsel stating that, in the opinion of such counsel, all such conditions
precedent, if any, have been complied with, except that, in the case of any
such application or request as to which the furnishing of such documents or
any of them is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate
or opinion need be furnished. Any Officer's Certificate will comply with
Section 314(e) of the Trust Indenture Act.
Section 1.3. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon an Opinion of Counsel,
unless such officer knows, or in the exercise of reasonable care should know,
that the opinion with respect to the matters upon which the certificate or
opinion is based are erroneous. Any such Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect
to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture or any Security, they may, but need
not, be consolidated and form one instrument.
Section 1.4. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by an agent duly appointed in writing. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.1) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved in any reasonable manner which
the Trustee deems sufficient and in accordance with such reasonable rules
as the Trustee may determine; and the Trustee may in any instance require
further proof with respect to any of the matters referred to in this
Section.
(c) The ownership of Securities shall be proved by the
Security Register.
(d) If the Company shall solicit from the Holders of
Securities of any series any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Company may, at its option, fix
in advance a record date for the determination of Holders of Securities
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to
do so. Any such record date shall be fixed at the Company's discretion.
If such a record date is fixed, such request, demand, authorization,
direction, notice, consent and waiver or other Act may be sought or given
before or after the record date, but only the Holders of Securities of
record at the close of business on such record date shall be deemed to be
Holders of Securities for the purpose of determining whether Holders of the
requisite proportion of Securities of such series Outstanding have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose the
Securities of such series Outstanding shall be computed as of such record
date.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by
the Trustee, any Security Registrar, any Paying Agent or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
Section 1.5. Notes, Etc. to Trustee and Company. Any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given
or furnished to, or filed with:
(a) the Trustee by any Holder or the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trust Trustee Administration; or
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the
Company at 8155 T&B Boulevard, Memphis, Tennessee 38125, attention Vice
President-Finance and Treasurer (with a copy to the Vice President-General
Counsel and Secretary), or at any other address previously furnished in
writing to the Trustee by the Company.
Section 1.6. Notice to Holders; Waiver. Where this Indenture
or any Security provides for notice to Holders of any event, such notice shall
be sufficiently given (unless otherwise herein or in such Security expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at the Holder's address as it appears in the Security
Register, not later than the latest date, or not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Any notice which is
mailed in the manner herein provided shall be conclusively presumed to have
been duly given or provided.
Where this Indenture or any Security provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
Section 1.7. Conflict with Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with another provision hereof
which is required to be included in this Indenture by any of the provisions of
the Trust Indenture Act, such required provision shall control.
Section 1.8. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 1.9. Successors and Assigns. All covenants and
agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
Section 1.10. Separability Clause. In case any provision in
this Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 1.11. Benefits and Indenture. Nothing in this
Indenture or in the Securities, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder and the Holders,
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
Section 1.12. Governing Law. This Indenture and the
Securities shall be governed by and construed in accordance with the laws of
the State of New York.
Section 1.13. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date or Stated Maturity of any Security shall not be
a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities) payment of interest or
principal (and premium, if any) or any Additional Amounts need not be made at
such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if
made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, and no interest shall accrue with respect to such payments for the
period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be, to the next succeeding Business Day.
Section 1.14. Language of Notices. Any request, demand,
authorization, direction, notice, consent, election or waiver required or
permitted under this Indenture shall be in the English language, except that,
if the Company so elects, any published notice may be in an official language
of the country of publication.
Section 1.15. Counterparts. This Indenture may be executed in
several counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
ARTICLE 2
Security Forms
Section 2.1. Forms Generally. The Securities of each series
shall be in substantially the form attached hereto as Exhibit A as shall be
established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be consistently
herewith, be determined by the officers executing such Securities, as
evidenced by their execution of the Securities.
If any form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record
of such action shall be certified by the Secretary or Assistant Secretary of
the Company and delivered to the Trustee at the same time as or prior to the
delivery of the Company Order contemplated by Section 3.3 for the
authentication and delivery of such Securities.
The definitive Securities may be produced in any manner
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
Unless otherwise provided in or pursuant to this Indenture or
any Securities, the Securities shall be issuable in registered form without
coupons and shall not be issuable upon the exercise of warrants.
Section 2.2. Form of Trustee's Certificate of Authentication.
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:____________________________
Authorized Signatory
Section 2.3. Global Securities. Unless otherwise provided in
or pursuant to this Indenture or any Securities, the Securities shall be
issued in global form. Any such Security may provide that it or any number of
such Securities shall represent the aggregate amount of all Outstanding
Securities of such series (or such lessor amount as is permitted by the terms
thereof) from time to time endorsed thereon and may also provide that the
aggregate amount of Outstanding Securities represented thereby may from time
to time be increased or reduced to reflect exchanges. Any endorsement of any
Security in global form to reflect the amount, or any increase or decrease in
the amount, or changes in the rights of Holders, of Outstanding Securities
represented thereby shall be made in such manner and by such Person as shall
be specified therein or in the Company Order to be delivered pursuant to
Section 3.3 or 3.4 with respect thereto.
Subject to the provisions of Section 3.3 and, if applicable,
Section 3.4, the Trustee shall deliver and redeliver any Security in permanent
global form in the manner and upon instructions given by the Person specified
therein or in the applicable Company Order. If a Company Order pursuant to
Section 3.3 or 3.4 has been, or simultaneously is, delivered, any instructions
by the Company with respect to a Security in global form shall be in writing
but need not be accompanied by or contained in an Officer's Certificate and
need not be accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Section 3.7, unless otherwise
specified in or pursuant to this Indenture or any Securities, payment of
principal of, any premium and interest on, and any Additional Amounts in
respect of, any Security in global form shall be made to the Person specified
therein.
Notwithstanding the provisions of Section 3.8 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent of
the Company and the Trustee shall treat as the Holder, the holder of such
global Security in registered form.
Any Global Security authenticated and delivered hereunder shall
bear a legend in substantially the following form:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the
name of a Depository or a nominee of a Depository. This
Security is exchangeable for Securities registered in the
name of a Person other than the Depository or its nominee
only in the limited circumstances described in the
Indenture, and no transfer of this Security (other than a
transfer of this Security as a whole by the Depository to a
nominee of the Depository or by a nominee of the Depository
to the Depository or another nominee of the Depository) may
be registered except in such limited circumstances."
ARTICLE 3
The Securities
Section 3.1. 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 a Board Resolution and (subject to
Section 3.3) set forth in an Officer's Certificate, or established in one or
more indentures supplemental hereto, prior to the issuance of Securities of
any series (subject to the last paragraph of this Section 3.1).
(a) the title of the Securities and the series in which such
Securities shall be included (which shall distinguish the Securities of the
series from all other Securities);
(b) any limit upon the aggregate principal amount of the
Securities of the series which 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 3.4, 3.5, 3.6, 9.6 or 11.7 and except for any
Securities which, pursuant to Section 3.3 are deemed never to have been
authenticated and delivered hereunder);
(c) the date or dates on which the principal of the
Securities of the series is payable;
(d) the Person to whom any interest on any Security of the
series shall be payable if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, the rate or
rates, which may be fixed or variable, at which the Securities of the
series shall bear interest, if any, if the rate is variable, the manner of
calculation thereof, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest shall be payable
and the Regular Record Date for the interest payable on any Interest
Payment Date;
(e) the place or places where the principal of (and premium,
if any) and interest, if any, on Securities of the series shall be payable;
(f) the date or dates on which, the period or periods within
which, the price or prices at which and the terms and conditions upon which
Securities of the series may be redeemed, in whole or in part, at the
option of the Company;
(g) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the date or dates on
which, the period or periods within which, the price or prices at which and
the terms and conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such obligation and
any provisions for the remarketing of such securities so redeemed or
purchased;
(h) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series shall
be issuable;
(i) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.2 or the method by which such portion is to be determined;
(j) the application, if any, of either or both of Section
13.2 and Section 13.3 to the Securities of the series;
(k) if other than Dollars, the Foreign Currency in which
payment of the principal of, any premium or interest on or any Additional
Amounts with respect to any of such Securities shall be payable;
(l) if the principal of (and premium, if any) or interest,
if any, on the Securities of that series are to be payable, at the election
of the Company or a Holder thereof, in a currency (including a composite
currency) other than that in which the Securities are stated to be payable,
the date or dates on which, the period or periods within which, and the
terms and conditions upon which, such election may be made;
(m) if the amount of payments of principal of (and premium
if any) or interest, if any, on the Securities of the series may be
determined with reference to an index, formula or other method or methods
based on a currency (including a composite currency) other than that in
which the Securities are stated to be payable, the terms and conditions
upon which and the manner in which such amounts shall be determined and
paid or payable;
(n) if the amount of payments of principal of, any premium or
interest on the Securities of the series may be determined with reference to
an index, the manner in which such amounts shall be determined;
(o) whether any Securities of the series are to be issuable
upon original issuance in the form of one or more Global Securities and, if
so, (i) the Depository with respect to such Global Security or Securities
and (ii) the circumstances under which any such Global Security may be
exchanged for Securities registered in the name of, and any transfer of
such Global Security may be registered to, a Person other than such
Depository or its nominee, if other than as set forth in Section 3.5;
(p) whether and under what circumstances Additional Amounts on
such Securities or any of them shall be payable;
(q) the notice, if any, to Holders regarding the determination
of interest on a floating rate Security and the manner of giving such
notice, and the basis upon which interest shall be calculated if other than
that of a 360-day year of twelve 30-day months;
(r) intentionally left blank;
(s) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to any Securities,
whether or not such Events of Default or covenants are consistent with the
Events of Default or covenants set forth herein;
(t) if any of such Securities are to be issuable in global
form and are to be issuable in definitive form (whether upon original issue
or upon exchange of a temporary Security) 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;
(u) if there is more than one Trustee, the identity of the
Trustee and, if not the Trustee, the identity of each Security Registrar,
Paying Agent or Authenticating Agent with respect to such Securities; and
(v) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture) and any deletions from or
modifications or additions to this Indenture in respect of such series.
All Securities of any one series shall be substantially
identical except as to denomination, currency, rate of interest, or method of
determining the rate of interest, if any, Maturity, and the date from which
interest, if any, shall accrue and except as may otherwise be provided in or
pursuant to such Board Resolution referred to above and (subject to Section
3.3) set forth in the Officer's Certificate referred to above or in any
indenture supplemental hereto. If any of the terms of the series are
established by action taken pursuant to a Board Resolution, a copy of the
Board Resolution shall be delivered to the Trustee at the same time as or
prior to the delivery of the Officer's Certificate setting forth the terms of
the series.
Notwithstanding any contrary terms of this Section 3.1, the
terms of the Securities of any series may provide, without limitation, that
the Securities shall be authenticated and delivered by the Trustee on original
issue from time to time upon telephonic or written order of Persons designated
in the Officer's Certificate or supplemental indenture and that such Persons
are authorized to determine, consistent with such Officer's Certificate or any
supplemental indenture, such terms and conditions of the Securities of such
series as are specified in such certificate or supplemental indenture. All
Securities of any one series may be reopened for issuances of additional
Securities of such series or to establish additional terms of such series of
Securities.
Section 3.2. Denominations. Unless otherwise provided in or
pursuant to this Indenture, the principal of, any premium and interest on and
any Additional Amounts with respect to the Securities shall be payable in
Dollars. The Securities of each series shall be issuable only in fully
registered form without coupons in such denominations as shall be specified
pursuant to Section 3.1. In the absence of any such provision with respect to
the Securities of any series, the Securities of such series shall be issuable
in denominations of $1,000 and any integral multiple thereof. Securities not
denominated in Dollars shall be issuable in such denominations as are
established with respect to such Securities in or pursuant to this Indenture.
Section 3.3. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its President or
any Vice President, under its corporate seal reproduced thereon attested by its
Secretary or Assistant Secretary. The signature of any of these officers on
the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were the proper officers of the Company when their signatures
were affixed to such Securities shall bind the Company, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices at
the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and make such
Securities available for delivery. If the form or terms of the Securities of
the series have been established in or pursuant to one or more Board
Resolutions or indentures supplemental hereto as permitted by Sections 2.1 and
3.1, 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:
(a) an Opinion of Counsel to the effect that:
(i) if the form of such Securities has been
established by or pursuant to Board Resolution as permitted by
Section 2.1, that such form has been established in conformity
with the provisions of this Indenture;
(ii) if the terms of such Securities have been
established by or pursuant to Board Resolution as permitted by
Section 3.1, that such terms have been established in conformity
with the provisions of this Indenture;
(iii) this Indenture has been qualified under the
Trust Indenture Act; and
(iv) that such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general
applicability relating to or affecting the enforcement of creditors'
rights and to general equity principles and will entitle the Holders
thereof to the benefits of this Indenture; and
(b) an Officer's Certificate stating that, to the best
knowledge of the Person executing such certificate, no event which is, or
after notice or lapse of time would become, an Event of Default with
respect to any of the Securities shall have occurred and be continuing.
Notwithstanding the provisions of Section 3.1 and of the
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver an Opinion of
Counsel, Officer's Certificate or the Company Order otherwise required at or
prior to the time of authentication of each Security of such series if such
documents are delivered at or prior to the time of authentication upon
original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form
provided for herein executed by, or on behalf of, the Trustee or by the
Authenticating Agent by manual signature. Such certificate upon any Security
shall be conclusive evidence, and the only evidence, that such Security has
been duly authenticated and delivered hereunder.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 3.9 together with a written statement
(which need not comply with Section 1.2 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been issued and sold
by the Company, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder and shall not
be entitled to the benefits of this Indenture.
The Trustee shall not be required to authenticate or to cause an
Authentication Agent to authenticate any Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee.
Section 3.4. Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company may execute and deliver to the
Trustee, and, upon Company Order, the Trustee shall authenticate and make
available for delivery in the manner provided in Section 3.3, temporary
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers of the Company executing such Securities may determine, as evidenced
by their execution of such Securities. Such temporary Securities may be in
global form.
If temporary Securities of any series are issued, the Company
will cause definitive Securities to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities at the office or agency
of the Company in a Place of Payment for that series, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor a like
principal amount of definitive Securities of the same series and of like tenor
of authorized denomination containing terms and provisions that are identical
to those of any temporary Securities. Until so exchanged the temporary
Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of the same series.
Section 3.5. Registration, Transfer and Exchange. The Company
shall cause to be kept at the Corporate Trust Office a register (the register
maintained in such office and in any other office or agency of the Company in
a Place of Payment being herein sometimes collectively referred to as the
"Security Register") in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of Securities and
of transfers of Securities. The Trustee is hereby appointed "Security
Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided.
The Company shall have the right to remove and replace from
time to time the Security Registrar for any series of Securities; provided
that no such removal or replacement shall be effective until a successor
Security Registrar with respect to such series of Securities shall have been
appointed by the Company and shall have accepted such appointment by the
Company. In the event that the Trustee shall not be or shall cease to be
Security Registrar with respect to a series of Securities, it shall have the
right to examine the Security Register for such series at all reasonable
times. There shall be only one Security Register for each series of
Securities.
Upon surrender for registration of transfer of any Security of
any series at the office or agency of the Company in a Place of Payment for
such series, the Company shall execute, and the Trustee shall authenticate and
make available for delivery, in the name of the designated transferee or
transferees, one or more new Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor containing
identical terms and provisions.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series containing identical terms
and provisions in any authorized denominations and of a like aggregate
principal amount and tenor, upon surrender of the Securities to be exchanged
at such office or agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
make available for delivery, the Securities which the Holder making the
exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or the Holder's attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.4, 9.6 or 11.7 not
involving any transfer.
Except as otherwise provided herein, the Company shall not be
required (i) to issue, register the transfer of or exchange Securities of any
series during a period beginning at the opening of business 15 days before the
day of the mailing of a notice of redemption of Securities of such series
selected for redemption under Section 11.3 and ending at the close of business
on the day of such mailing, or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 3.1, any Global Security of any series shall be
exchangeable for definitive Securities only if: (i) such Depository is
unwilling, unable or ineligible to continue as Depository with respect to such
Global Security and a successor depository is not appointed by the Company
within 90 days or if at any time the Depository with respect to such Global
Security ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, or (ii) the Company executes and delivers
to the Trustee a Company Order providing that such Global Security shall be
so exchangeable and the transfer thereof so registrable.
If the beneficial owners of interests in a Global Security are
entitled to exchange such interests for definitive Securities as the result of
an event described in the preceding sentence, then without unnecessary delay
but in any event not later than the earliest date on which such interests may
be so exchanged, the Company shall deliver to the Trustee definitive
Securities in such form and denominations as are required by or pursuant to
this Indenture, and of the same series, containing identical terms and in
aggregate principal amount equal to the principal amount of such Global
Security, executed by the Company. On or after the earliest date on which
such interests may be so exchanged, such Global Security shall be surrendered
from time to time by the Depository and in accordance with instructions given
to the Trustee and the Depository (which instructions shall be in writing but
need not be contained in or accompanied by an Officer's Certificate or be
accompanied by an Opinion of Counsel), as shall be specified in the Company
Order with respect thereto to the Trustee, as the Company's agent for such
purpose, to be exchanged, in whole or in part, for definitive Securities as
described above without charge.
The Trustee shall authenticate and make available for delivery,
in exchange for each portion of such surrendered Global Security, a like
aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such Global
Security to be exchanged, which shall be in the form of Securities, as shall be
specified by the beneficial owner thereof, provided, however, that no such
exchanges may occur during a period beginning at the opening of business 15
days before any selection of Securities of the same series to be redeemed and
ending at the close of business on the day of the mailing of a notice of
redemption of Securities.
Promptly following any such exchange in part, such global
Security shall be returned by the Trustee to such Depository in accordance
with the instructions of the Company referred to above. If a Security is
issued in exchange for any portion of a Global Security after the close of
business at the office or agency for such Security where such exchange occurs
on or after (i) any Regular Record Date for such Security and before the
opening of business at such office or agency on the next Interest Payment
Date, or (ii) any Special Record Date for such Security and before the opening
of business at such office or agency on the related proposed date for payment
of interest or Defaulted Interest, as the case may be, interest shall not be
payable on such Interest Payment Date or proposed date for payment, as the
case may be, in respect of such Security, but shall be payable on such
Interest Payment Date or proposed date for payment, as the case may be, only
to the Person to whom interest in respect of such portion of such Global
Security shall be payable in accordance with the provisions of this Indenture.
Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities.
If (a) any mutilated Security is surrendered to the Trustee or if there shall
be delivered to the Company and the Trustee evidence to their satisfaction of
the destruction, loss or theft of any Security and (b) there shall be
delivered to the Company and the Trustee such indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in
the absence of notice to the Company or the Trustee that such Security has
been acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and make available for delivery, in
lieu of any such mutilated, destroyed, lost or stolen Security, a new Security
of the same series containing identical terms and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall constitute a
separate obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of the same series duly issued hereunder.
The provisions of this Section, as amended or supplemented
pursuant to this Indenture, are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 3.7. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 3.1 with respect to any
series of Securities, interest on and any Additional Amounts with respect to
any Security which is payable, and is punctually paid or duly provided for, on
any Interest Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest.
Any interest on, and any Additional Amounts with respect to, any
Security of any series which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Person in whose name the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Security of such series and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money equal to
the aggregate amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit prior
to the date of the proposed payment. Such money when deposited will be held in
trust for the benefit of the Persons entitled to such Defaulted Interest as in
this Clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to each Holder
of Securities of such series at the Holder's address as it appears in the
Security Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to the
following Clause (b).
(b) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such Securities
may be listed, and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Unless otherwise provided in or pursuant to this Indenture or
the Securities of any particular series pursuant to the provisions of this
Indenture, at the option of the Company, interest on Securities may be paid by
mailing a check to the address of the Person entitled thereto as such address
shall appear in the Security Register or by transfer to an account maintained
by the payee with a bank located in the United States.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Section 3.8. Persons Deemed Owners. Prior to due presentment
of a Security for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name such
Security is registered as the owner of such Security for the purpose of
receiving payment of principal of (and premium, if any) and (subject to
Sections 3.5 and 3.7) interest on and any Additional Amounts with respect to
such Security and for all other purposes whatsoever, whether or not any
payment with respect to such Security shall be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
No Holder of any beneficial interest in any Global Security
held on its behalf by a Depository shall have any rights under this Indenture
with respect to such Global Security, and such Depository may be treated by
the Company, the Trustee, and any agent of the Company or the Trustee as the
owner of such Global Security for all purposes whatsoever. None of the
Company, the Trustee, any Paying Agent or the Security Registrar will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
Section 3.9. Cancellation. All Securities surrendered for
payment, redemption, registration of transfer, exchange or for credit against
any sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly canceled by it.
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever and may deliver to the Trustee (or
to an Authenticating Agent for delivery to the Trustee) for cancellation any
Securities previously authenticated hereunder which the Company has not issued
and sold, and all Securities so delivered shall be promptly canceled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Securities held by the Trustee shall
be disposed of as directed by a Company Order, provided, however, that the
Trustee shall not be required to destroy such canceled Securities.
Section 3.10. Computation of Interest. Except as otherwise
specified pursuant to Section 3.1 for Securities of any series, interest on
the Securities of each series shall be computed on the basis of a 360-day year
of twelve 30-day months.
Section 3.11. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use), and, if so, the
Trustee shall use "CUSIP" numbers in notices of redemption as a convenience
to Holders; provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Securities
or as contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the Securities, and any
such redemption shall not be affected by any defect in or omission of such
numbers. The Company will promptly notify the Trustee of any change in the
"CUSIP" numbers.
ARTICLE 4
Satisfaction and Discharge
Section 4.1. Satisfaction and Discharge of Indenture. This
Indenture shall upon Company Request cease to be of further effect with
respect to any series of Securities specified in such Company Request (except
as to rights of registration of transfer or exchange of Securities), and the
Trustee on receipt of the Company Request, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture as to such series, when:
(a) either
(i) all Securities of such series theretofore
authenticated and delivered (other than (A) Securities of such
series which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 3.6 and (B)
Securities of such series for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 10.3) have been delivered to
the Trustee for cancellation; or
(ii) all such Securities not theretofore delivered
to the Trustee for cancellation:
(A) have become due and payable, or
(B) will become due and payable at their
Stated Maturity within one year, or
(C) if redeemable at the option of the
Company, are to be called for redemption within one
year under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in
the name, and at the expense, of the Company,
and the Company, in the case of (A), (B) or (C) above, has
deposited or caused to be deposited with the Trustee as trust funds
in trust for the purpose an amount sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal (and
premium, if any) and interest and any Additional Amounts to the
date of such deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or Redemption Date, as
the case may be.
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officer's
Certificate or an Opinion of Counsel, stating that all conditions precedent
herein relating to the satisfaction and discharge of this Indenture with
respect to such Securities have been complied with.
In the event there are Securities of two or more series
hereunder, the Trustee shall be required to execute an instrument
acknowledging satisfaction and discharge of this Indenture only if requested
to do so with respect to Securities of such series as to which it is Trustee
and if the other conditions thereto are met.
Notwithstanding the satisfaction and discharge of this
Indenture with respect to the Securities of any series, the obligations of the
Company to the Trustee under Section 6.7, the obligations of the Company to any
Authenticating Agent under Section 6.14 and, if money shall have been
deposited with the Trustee pursuant to subclause (ii) of clause (a) of this
Section, the obligations under Sections 3.4, 3.5, 3.6, 10.2 and 10.3, and the
obligation to pay Additional Amounts, if any, with respect to such Securities
as contemplated by Section 10.6 (but only to the extent that any Additional
Amounts payable with respect to such Securities exceed the amount deposited
in respect of such Additional Amounts pursuant to Section 4.1(a)(ii)), shall
survive.
Section 4.2. Application of Trust Money. Subject to the
provisions of the penultimate paragraph of Section 10.3, all money and
Government Obligations deposited with the Trustee pursuant to Section 4.1 and
Article 13 shall be held in trust and applied by it, in accordance with the
provisions of the Securities of the series for which such deposit was made and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any), interest and Additional Amounts for whose payment such money and
Government Obligations has been deposited with the Trustee; but such money and
Government Obligations need not be segregated from other funds except to the
extent required by law.
ARTICLE 5
Remedies
Section 5.1. Events of Default. "Event of Default," wherever
used herein with respect to the Securities of any series, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body), unless such event is
specifically deleted or modified in or pursuant to the supplemental indenture,
Board Resolution or Officer's Certificate establishing the terms of such series
pursuant to this Indenture:
(a) default in the payment of any interest upon any Security
of such series when it becomes due and payable, and continuance of such
default for a period of 30 days;
(b) default in the payment of the principal of (or premium, if
any, on) any Security of such series at its Maturity;
(c) default in the performance, or breach, of any covenant,
agreement or warranty of the Company in this Indenture (other than a covenant,
agreement or warranty a default in whose performance is elsewhere in this
Section specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of series of Securities other than such
series) and continuance of such default for a period of 60 days after there
has been given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 50% in principal
amount of the Outstanding Securities of such series a written notice
specifying such default and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder;
(d) default in the deposit of any sinking fund payment when
and as due by the terms of a Security of such series;
(e) the entry by a court having jurisdiction of a decree or
order adjudging the Company a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or composition
of or in respect of the Company under federal bankruptcy law or any other
applicable federal or state law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Company or of any substantial part of its property, or ordering the winding up
or liquidation of its affairs, and the continuance of any such decree or order
unstayed and in effect for a period of 60 consecutive days;
(f) the commencement by the Company of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the commencement
of bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under federal
bankruptcy law or any other applicable federal or state law, or the consent by
it to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the Company
or of any substantial part of its property, or the making by it of a general
assignment for the benefit of creditors, or the admission by it in writing of
its inability to pay its debts generally as they become due, or the taking of
corporate action by the Company in furtherance of any such action; or
(g) any other Event of Default provided pursuant to Section 3.1
with respect to Securities of such series.
Section 5.2. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default with respect to Securities of any series at
the time Outstanding occurs and is continuing, then in the Event of Default
described in Section 5.1, clauses (a), (b), (c), (d) and (g) above, the
Trustee or the Holders of not less than 50% in principal amount of the
Outstanding Securities of such series may declare the principal amount of all
the Securities of such series to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon
any such declaration such principal amount shall become immediately due and
payable. If an Event of Default specified in clauses (e) or (f) of Section
5.1 hereof occurs, the principal amount of all Outstanding Securities of each
series shall become due and payable without any declaration or other act on
the part of the Trustee or the Holders of Securities of any series.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before the Stated
Maturity thereof, the Holders of a majority in principal amount of the
Outstanding Securities of such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(i) all overdue installments of interest on and any
Additional Amounts with respect to all Securities of such series;
(ii) the principal of (and premium, if any, on) any Securities
of such series which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Securities of such
series and any Additional Amounts;
(iii) to the extent that payment of such interest or Additional
Amounts is lawful, interest upon overdue interest or Additional Amounts at the
rate borne by the Securities of such series; and
(iv) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(b) all Events of Default with respect to the Securities of
such series, other than the non-payment of the principal of Securities of such
series which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
Section 5.3. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if:
(a) default is made in the payment of any interest on any
Securities when such interest becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or
premium, if any, on) any Securities at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal (and premium, if any) and interest
and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal (and premium, if any) and on
any overdue interest, at the rate borne by the Securities and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sum so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of the Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 5.4. Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the 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 on the Company
for the payment of overdue principal (and premium, if any) or interest or
Additional Amounts) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest and Additional Amounts owing
and unpaid in respect of the Securities and to file such other papers and
documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that
the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section
6.7.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
Section 5.5. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities may be prosecuted by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 5.6. Application of Money Collected. Any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or premium, if any),
interest or Additional Amounts, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
First: To the payment of all amounts due the Trustee under
Section 6.7;
Second: To the payment of the amounts then due and unpaid for
principal of (and premium, if any), interest and
Additional Amounts on the Securities in respect of
which or for the benefit of which such money has been
collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on
such Securities for principal (and premium, if any),
interest and Additional Amounts, respectively; and
Third: To the payment of the remainder, if any, to the Company
or any other Person lawfully entitled thereto.
Section 5.7. Limitation on Suits. No Holder of any Security
of any series shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of
such series;
(b) the Holders of not less than 50% in principal amount of
the Outstanding Securities of such series shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
indemnity satisfactory to it against the costs, expenses and liabilities to
be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceedings;
and
(e) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of such series.
It being understood and intended that no one or more Holders of
Securities shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice
the right of any other such Holders of Securities of such series, or to obtain
or to seek to obtain priority or preference over any other such Holders or to
enforce any right under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all such Holders of Securities.
Section 5.8. Unconditional Right of Holders to Receive
Principal, Premium and Interest. Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the right, which is absolute
and unconditional, to receive payment of the principal of (and premium, if any,
on) and (subject to Section 3.7) interest on, and any Additional Amounts with
respect to, such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment and such rights shall
not be impaired without the consent of such Holder.
Section 5.9. Restoration of Rights and Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as
though no such proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.6, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section 5.12. Control by Holders. The Holders of a majority in
principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, with respect to the Securities of such series,
provided that:
(a) such direction shall not be in conflict with any rule of
law or with this Indenture or with such Securities;
(b) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction; and
(c) subject to Section 6.1, the Trustee need not take any
action which might be prejudicial to the Holders of such series not
consenting.
Section 5.13. Waiver of Past Defaults. The Holders of not
less than a majority in principal amount of the Outstanding Securities of any
series may on behalf of the Holders of all the Securities of such series waive
any past default hereunder with respect to such series and its consequences,
except a default:
(a) in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or
(b) in respect of a covenant or provision hereof which under
Article 9 cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist with
respect to such series, and any Event of Default arising therefrom shall be
deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
Section 5.14. Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Security by 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 and expenses, 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
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in
principal amount of the Outstanding Securities of any series, or to any suit
instituted by any Holder for the enforcement of the payment of the principal
of (or premium, if any) or interest on any Security on or after the respective
Stated Maturities expressed in such Security (or, in the case of redemption,
on or after the Redemption Date).
Section 5.15. Waiver of Stay or Extension Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE 6
The Trustee
Section 6.1. Certain Duties and Responsibilities. (a) Except
during the continuance of an Event of Default,
(i) the Trustee undertakes to perform such
duties and only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; but in the case of any
such 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) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested
in it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances
in the conduct of his or her own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct; except that:
(i) this Subsection shall not be construed to
limit the effect of Subsection (a) of this Section;
(ii) the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer,
unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of any series
relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such series; and
(iv) no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section.
Section 6.2. Notice of Defaults. Within 90 days after the
occurrence of any default hereunder with respect to the Securities of any
series, the Trustee shall transmit by mail to all Holders of Securities of
such series, as their names and addresses appear in the Security Register,
notice of such default hereunder known to the Trustee, unless such default
shall have been cured or waived; provided, however, that, except in the case
of a default in the payment of the principal of (or premium, if any) or
interest on any Security, 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 Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interest of the
Holders of Securities of such series; and provided, further, that in the case
of any default of the character specified in Section 5.1(c) with respect to
the Securities of such series no such notice to Holders shall be given until
at least 60 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default with respect to Securities
of such series.
Section 6.3. Certain Rights of Trustee. Subject to the
provisions of Section 6.1:
(a) the Trustee may conclusively rely and shall be protected
in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and
any resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel of its selection and
the advice of such counsel or any Opinion of Counsel shall be authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee indemnity satisfactory to it
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder;
(h) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably believed
by it to be authorized or within the discretion or rights of powers conferred
upon it by this Indenture; and
(i) the rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder.
Section 6.4. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assume no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities, except
that the Trustee represents that it is duly authorized to execute and deliver
this Indenture, authenticate the Securities and perform its obligations
hereunder and that the statements made by it in a Statement of Eligibility on
Form T-1 supplied to the Company are true and accurate, subject to the
qualifications set forth therein. The Trustee or any Authenticating Agent
shall not be accountable for the use or application by the Company of
Securities or the proceeds thereof.
Section 6.5. May Hold Securities. The Trustee, any
Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Section 6.13, may otherwise
deal with the Company with the same rights it would have if it were not
Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other
agent.
Section 6.6. Money Held in Trust. Except as otherwise provided
herein, money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
Section 6.7. Compensation and Reimbursement. The Company
agrees:
(a) to pay to the Trustee from time to time such
compensation as shall be agreed in writing from time to time between the
Company and the Trustee for all services rendered by it hereunder;
(b) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance
with any provision of this Indenture (including the reasonable compensation
and the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(c) to indemnify each of the Trustee and any predecessor
Trustee for, and to hold it harmless against, any and all loss, liability,
damage, claim or expense, including taxes (other than taxes based on the
income of the Trustee) incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses of
defending itself against any claim, whether asserted by the Company, or any
Holder or any other Person, or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the extent
that any such loss, liability, damage, claim or expense was due to the
Trustee's negligence or bad faith.
The Trustee shall have a lien prior to the Securities as to all
property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 6.7, except with respect to funds
held in trust for the benefit of the Holders of particular Securities.
When the Trustee incurs expenses or tenders services in
connection with an Event of Default specified in Section 5.1(e) or Section
5.1(f), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy,
insolvency or other similar law.
The provisions of this Section shall survive the termination of
this Indenture.
Section 6.8. Intentionally Left Blank.
Section 6.9. Corporate Trustee Required; Eligibility. (a)
There shall at all times be a Trustee hereunder which shall:
(i) be a Corporation organized and doing business
under the laws of the United States of America, any State thereof
or the District of Columbia authorized under such laws to
exercise corporate trust powers;
(ii) be eligible under Section 310(a) of the Trust
Indenture Act to act as trustee under an indenture qualified
under the Trust Indenture Act; and
(iii) have a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by
federal or state authority.
If such Corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such Corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
(b) The following Indenture shall be considered specifically
described herein for purposes of clause (i) of the proviso contained in
Section 310(b)(1) of the Trust Indenture Act:
Section 6.10. Resignation and Removal; Appointment of
Successor. (a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may at the
expense of the Company petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by the Company or by Act of the Holders of a majority
in principal amount of the Outstanding Securities of such series, delivered to
the Trustee, and to the Company in the case of an Act of the Holders. If an
instrument of acceptance by a successor Trustee shall not have been delivered
to the Trustee within 30 days after the giving of such notice of removal, the
Trustee being removed may petition, at the expense of the Company, any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(d) If at any time:
(i) the Trustee shall fail to comply with the
obligations imposed upon it under Section 310(b) of the Trust
Indenture Act with respect to the Securities after written
request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months;
(ii) the Trustee shall cease to be eligible under
Section 6.9 and shall fail to resign after written request
therefor by the Company or by any such Holder; or
(iii) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation, then, in any such case, (A) the
Company may remove the Trustee with respect to all Securities or
the Securities of such series, or (B) subject to Section 5.14,
any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of such Holder and all other
similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee with respect to all Securities of
such series and the appointment of a successor Trustee.
(iv) If the Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the
office of Trustee for any cause, with respect to the Securities
of one or more series, the Company shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of
that or those Series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be
only one Trustee with respect to the Securities of any particular
series).
If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the
Holders of 75% in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment
in accordance with the applicable requirements of Section 6.11, become the
successor Trustee with respect to the Securities of such series and supersede
the successor Trustee appointed by the Company.
If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 6.11, any Holder who has been
a bona fide Holder of a Security of such series for at least six months may, on
behalf of such Holder and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(v) The Company shall give notice of each
resignation and each removal of the Trustee with respect to the
Securities of any series and each appointment of a successor
Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage
prepaid, to all Holders of Securities of such series as their
names and addresses appear in the Security Register. Each notice
shall include the name of the successor Trustee with respect to
the Securities of such series and the address of its Corporate
Trust Office.
Section 6.11. Acceptance of Appointment by Successor. (a) In
case of the appointment hereunder of a successor Trustee with respect to all
Securities, every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which,
(i) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest
in, each successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor
Trustee relates,
(ii) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall
be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the
retiring Trustee, and
(iii) shall add to or change any of the provisions
of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more
than one Trustee.
It being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any other such
Trustee.
Upon the execution and delivery of such supplemental indenture,
the resignation or removal of the retiring Trustee shall become effective to
the extent provided therein and each such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such a acceptance such successor Trustee shall be qualified and
eligible under this Article.
Section 6.12. Merger, Conversion, Consolidation or Succession
to Business. Any Corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any Corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such Corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so authenticated with the
same effect as if such successor Trustee had itself authenticated such
Securities.
Section 6.13. Preferential Claims. Reference is made to
Section 311 of the Trust Indenture Act. For purposes of Section 311(b)(4) and
(6) of such Act:
(i) "cash transaction" means any transaction in
which full payment for goods or securities sold is made within
seven days after delivery of the goods or securities in currency
or in checks or other orders drawn upon banks or bankers and
payable upon demand; and
(ii) "self-liquidating paper" means any draft,
bill of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company for the purpose of
financing the purchase, processing, manufacturing, shipment,
storage or sale of goods, wares or merchandise and which is
secured by documents evidencing title to, possession of, or a
lien upon, the goods, wares or merchandise or the receivables or
proceeds arising from the sale of the goods, wares or merchandise
previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation.
Section 6.14. Appointment of Authenticating Agent. At any time
when any of the Securities remain Outstanding the Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issuance, exchange,
registration of transfer or partial redemption thereof or pursuant to Section
3.6, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in the
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and
shall at all times be a Corporation organized and doing business under the laws
of the United States of America, any state thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by federal or state authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating
Agent shall cease to be eligible in accordance with the provisions of this
Section, such Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any Corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any Corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any Corporation succeeding to all or
substantially all the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating Agent, provided
that such Corporation shall be otherwise eligible under this Section, without
the execution or filing of any paper or any further act on the part of the
Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving 30
days' written notice thereof to the Trustee and to the Company. The Trustee
may at any time terminate the agency of an Authenticating Agent by giving
written notice thereof to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in case
at any time such Authenticating Agent shall cease to be eligible in accordance
with the provision of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all
Holders of Securities of the series with respect to which such Authenticating
Agent will serve, as their names and addresses appear in the Security
Register. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named
as an Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provision of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By _________________________________
As Authenticating Agent
By _________________________________
Authorized Signatory
ARTICLE 7
Holders' Lists and Reports by Trustee and Company
Section 7.1. Company to Furnish Trustee Names and Addresses of
Holders. The Company will furnish or cause to be furnished to the Trustee
with respect to the Securities of each series:
(a) semi-annually, not later than each Interest Payment Date
for such series (or, in the case of any series not having semi-annual Interest
Payment Dates, semi-annually, not later than the dates determined pursuant to
Section 3.1 for such series) a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders as of the
preceding Regular Record Date (or as of such other date determined pursuant to
Section 3.1 for such series) therefor, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished; provided, however, that so long as the Trustee is the
Security Registrar no such list shall be required to be furnished.
Section 7.2. Preservation of Information; Communications to
Holders. (a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of the Securities of each
series contained in the most recent list furnished to the Trustee as provided
in Section 7.1 and the names and addresses of such Holders received by the
Trustee in its capacity as Security Registrar. The Trustee may destroy any
list of the Holders of Securities of any series furnished to it as provided in
Section 7.1 upon receipt of a new list of such Holders.
(b) If three or more Holders of Securities of any series
(herein referred to as "applicants") apply in writing to the Trustee, and
furnish to the Trustee reasonable proof that each such applicant has owned
a Security of such series for a period of at least six months preceding the
date of such application, and such application states that the applicants
desire to communicate with other Holders of Securities of such series with
respect to their rights under this Indenture or under the Securities of
such series and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee
shall, within five Business Days after the receipt of such application, at
its election, either:
(i) afford such applicants access to the
information preserved at the time by the Trustee in accordance
with Section 7.2(a) with respect to the Securities of such
series, or
(ii) inform such applicants as to the approximate
number of Holders of Securities of such series whose names and
addresses appear in the information preserved at the time by the
Trustee in accordance with Section 7.2(a), and as to the
approximate cost of mailing to such Holders the form of proxy or
other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access
to such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of Securities of such series whose name and
address appear in the information preserved at the time by the Trustee in
accordance with Section 7.2(a) a copy of the form or proxy or other
communication which is specified in such request, with reasonable promptness
after a tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of mailing, unless
within five days after such tender the Trustee shall mail to such applicants
and file with the Commission, together with a copy of the material to be
mailed, a written statement to the effect that, in the opinion of the Trustee,
such mailing would be contrary to the best interest of the Holders or would be
in violation of applicable law. Such written statement shall specify the
basis of such opinion. If the Commission, after opportunity for a hearing
upon the objections specified in the written statement so filed, shall enter
an order refusing to sustain any of such objections or if, after the entry of
an order sustaining one or more of such objections, the Commission shall find,
after notice and opportunity for hearing, that all the objections so sustained
have been met and shall enter an order so declaring, the Trustee shall mail
copies of such material to all such Holders with reasonable promptness after
the entry of such order and the renewal of such tender; otherwise the Trustee
shall be relieved of any obligation or duty to such applicants respecting
their application.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 7.2(b), regardless of the source from which
such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 7.2(b).
Section 7.3. Reports by Trustee.
(a) Within 60 days after July 15 of each year commencing with
the year 1999, the Trustee shall transmit by mail to all Holders, as their
names and addresses appear in the Security Register, such brief report
dated as of such July 15, if any, as may be required by Section 313(a) of
the Trust Indenture Act.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company. The
Company will promptly notify the Trustee when any Securities are listed on any
stock exchange, or of any delisting thereof.
Section 7.4. Reports by Company. The Company shall:
(a) notify the Trustee, within 15 days after the Company has
filed with the Commission, copies of the annual reports and of the information,
documents and other reports which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934; or, if the Company is not required to file information, documents
or reports pursuant to either of said Sections, then it shall file with the
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934 in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(c) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraphs (a) and
(b) of this Section as may be required by rules and regulations prescribed
from time to time by the Commission.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein
or determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officer's Certificates).
ARTICLE 8
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.1. Company May Consolidate, Etc. on Certain Terms.
Nothing contained in this Indenture or in any of the Securities shall prevent
any consolidation or merger of the Company with or into any other Person, or
successive consolidations or mergers in which the Company or its successor or
successors shall be a party or parties, or shall prevent any conveyance,
transfer or lease of the property of the Company as an entirety or
substantially as an entirety, to any Person, provided that:
(a) in case the Company shall consolidate with or merge into
another Corporation or convey, transfer or lease its properties and assets as,
or substantially as, an entirety to any Person, the Corporation formed by such
consolidation or into which the Company is merged or the Person which acquires
by conveyance, transfer, or lease the properties and assets of the Company,
as, or substantially as, an entirety shall be a Corporation organized and
existing under the laws of the United States of America, any state thereof or
the District of Columbia and shall expressly assume, by an indenture
supplemental hereto executed and delivered to the Trustee, in form satisfactory
to the Trustee, the due and punctual payment of the principal of (and premium,
if any), interest on and any Additional Amounts with respect to all the
Securities and the performance of every covenant of this Indenture on the part
of the Company to be performed or observed;
(b) immediately after giving effect to such transaction, no
Event of Default, or event which after notice or lapse of time, or both,
would become an Event of Default, shall have occurred and be continuing;
and
(c) the Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, stating that such
consolidation, merger, conveyance, transfer or lease and such supplemental
indenture comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
Section 8.2. Successor Corporation Substituted. Upon any
consolidation by the Company with or merger by the Company into any other
Corporation or any conveyance, transfer or lease of the properties and assets
of the Company as, or substantially as, an entirety to any Person in accordance
with Section 8.1, the successor Corporation formed by such consolidation or
into which the Company is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as
if such successor Corporation has been named as the Company herein, and
thereafter, except in the case of a lease to another Person, the predecessor
Corporation shall be relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE 9
Supplemental Indentures
Section 9.1. Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders, the Company and the Trustee, at
any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of the
Company herein and in the Securities;
(b) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and, if such covenants are to
be for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such series)
or to surrender any right or power herein conferred upon the Company;
(c) to add any additional Events of Default with respect to
Securities of any or all series;
(d) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series created
prior to the execution of such supplemental indenture which is entitled to
the benefit of such provision;
(e) to secure the Securities of any or all series;
(f) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions
arising under this Indenture, provided such action shall not adversely
affect the interests of the Holders of Securities of any series in any
material respect;
(g) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate the
issuance of Securities in bearer form, registrable or not registrable as to
principal, and with or without interest coupons;
(h) to establish the form or terms of Securities of any
series as permitted by Sections 2.1 and 3.1;
(i) 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(b);
(j) to add to, delete from or revise the conditions,
limitations and restrictions on the authorized amount, terms or purposes of
issue, authentication and delivery of Securities, as herein set forth;
(k) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the defeasance
and discharge of any series of Securities pursuant to Article 13, provided
that no such supplement shall materially adversely affect the interest of
the Holders of any Securities then Outstanding; or
(l) to amend or supplement any provision contained herein or
in any supplemental indenture, provided that no such amendment or
supplement shall materially adversely affect the interest of the Holders of
any Securities then Outstanding.
Section 9.2. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and
the Trustee, the Company and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture
or of modifying in any manner the rights of the Holders of Securities of such
series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding
Security affected thereby,
(a) change the Stated Maturity of the principal of, or any
installment of interest on, any such Security, or reduce the principal amount
thereof or any interest thereon or any premium payable upon the redemption
thereof, or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of acceleration of
the Maturity thereof pursuant to Section 5.2, or change any Place of Payment
where, or the currency in which, any such Security or any premium or the
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof (or,
in the case of redemption, on or after the Redemption Date);
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of those
Holders is required for any waiver (of compliance with certain provisions
of this Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture; or
(c) modify any of the provisions of this Section or Section
5.13, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby.
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 the Holders of Securities of such
series with respect to such covenant or the provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Securities of any
other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 9.3. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 6.1) shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 9.4. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture
shall be modified in accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 9.5. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
Section 9.6. Reference in Securities to Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
ARTICLE 10
Covenants
Section 10.1. Payment of Principal, any Premium, Interest and
Additional Amounts. The Company covenants and agrees for the benefit of the
Holders of each series of Securities that it will duly and punctually pay the
principal of (and premium, if any) and interest on and any Additional Amounts
with respect to the Securities of that series in accordance with the terms of
the Securities and this Indenture.
Section 10.2. Maintenance of Office or Agency. The Company
will maintain in each Place of Payment for any series of Securities an office
or agency where Securities of such series may be presented or surrendered for
registration or transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities of such series and this Indenture may
be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of Trustee, and the Company hereby appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any
series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency.
Unless otherwise specified with respect to any Securities
pursuant to Section 3.1, if and so long as the Securities of any series (i)
are denominated in a Foreign Currency or (ii) may be payable in a Foreign
Currency, or so long as it is required under any other provision of this
Indenture, then the Company will maintain with respect to each such series of
Securities, or as so required, at least one exchange rate agent.
Section 10.3. Money for Securities Payments to be Held in
Trust. If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of
the principal of (and premium, if any) or interest on any of the Securities of
such series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and premium, if any)
or interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities, it will, on or before each due date of the principal
of or interest on any Securities of such series, deposit with a Paying Agent a
sum sufficient to pay the principal (or premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company hereby designates the Trustee as the initial Paying
Agent. Whenever the Company shall appoint a Paying Agent other than the
Trustee, it will cause such Paying Agent for any series of Securities to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(a) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Securities of such series in trust for
the benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of such series) in the making of any
payment of principal (and premium, if any) or interest on the Securities of
such series; and
(c) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability
with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
received by the Trustee (or another trustee satisfying the requirements of
Section 6.9) in respect of Government Obligations deposited with the Trustee
(or such other trustee) pursuant to Section 13.4, or then held by the Company,
in trust for the payment of the principal of (and premium, if any) or interest
on any Security of any series and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall
be paid to the Company on Company Request, or (if then held by the Company)
shall be discharged from such trust. The Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease.
The Trustee or such Paying Agent, before being required to make
any such repayment, may, at the expense of the Company publish, in the English
language, in a newspaper customarily published on each Business Day and of
general circulation in the City of New York, New York, or to be mailed to such
Holder or both, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the earlier
of the date of such publication or such mailing, any unclaimed balance of such
money then remaining will be repaid to the Company.
Section 10.4. Corporate Existence. Subject to Article 8, the
Company will do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence, rights (charter and
statutory) and franchises; provided, however, that the foregoing shall not
obligate the Company to preserve any such right or franchise if the Company
shall determine that the preservation thereof is no longer desirable in the
conduct of its business and that the loss thereof is not disadvantageous in
any material respect to any Holder.
Section 10.5. Statement as to Default. The Company will
deliver to the Trustee, within 120 days after the end of each fiscal year, an
Officer's Certificate, stating as to each signer thereof that he or she is
familiar with the affairs of the Company and whether or not to such officer's
knowledge the Company is in compliance (without regard to any period of grace
or requirement of notice) with all conditions and covenants of this Indenture.
The officer executing such certificate shall be the Company's principal
executive, financial or accounting officer and such certificate need not comply
with Section 314(e) of the Trust Indenture Act.
Section 10.6. Additional Amounts. If any Securities of a
series provide for the payment of Additional Amounts, the Company agrees to
pay to the Holder of any such Security Additional Amounts as provided in or
pursuant to this Indenture or such Securities. Whenever in this Indenture
there is mentioned, in any context, the payment of the principal of or any
premium or interest on, or in respect of, any Security of any series or the
net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided by the terms of such series established hereby or pursuant
hereto to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to such terms, and express
mention of the payment of Additional Amounts (if applicable) in any provision
hereof shall not be construed as excluding Additional Amounts in those
provisions hereof where such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture
or the Securities of the applicable series, if the Securities of a series
provide for the payment of Additional Amounts, at least 10 days prior to the
first Interest Payment Date with respect to such series of Securities (or if
the Securities of such series shall not bear interest prior to Maturity, the
first day on which a payment of principal is made), and at least 10 days prior
to each date of payment of principal or interest if there has been any change
with respect to the matters set forth in the below-mentioned Officer's
Certificate, the Company shall furnish to the Trustee and the Paying Agent, if
other than the Trustee, an Officer's Certificate instructing the Trustee and
such Paying Agent whether such payment of principal of an premium, if any, or
interest on the Securities of such series shall be made to Holders of
Securities of such series who are United States aliens without withholding for
or on account of any tax, assessment or other governmental charge described in
the Securities of such series. If any such withholding shall be required,
then such Officer's Certificate shall specify by country the amount, if any,
required to be withheld on such payments to such Holders of Securities, and
the Company agrees to pay to the Trustee or such Paying Agent the Additional
Amounts required by the terms of such Securities.
Section 10.7. Calculation of Original Issue Discount. The
Company shall file with the Trustee promptly at the end of each calendar year
(a) a written notice specifying the amount of original issue discount
(including daily rates and accrual periods) accrued on Outstanding Securities
as of the end of such year and (b) such other specific information relating to
such original issue discount as may then be relevant under the Internal
Revenue Code of 1986, as amended from time to time.
ARTICLE 11
Redemption of Securities
Section 11.1. Applicability of Article. Securities of any
series which are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified pursuant to
Section 3.1 for Securities of any series) in accordance with this Article.
Section 11.2. Election to Redeem; Notice to Trustee. In case
of any redemption of Securities of any series, the Company shall, at least 60
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date and of the principal amount of Securities of such series to be redeemed
and, if applicable, of the tenor of the Securities to be redeemed. In the case
of any redemption of Securities prior to the expiration of any restriction on
such redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officer's Certificate
evidencing compliance with such restriction.
Section 11.3. Selection by Trustee of Securities to be
Redeemed. If less than all the Securities of any series are to be redeemed
(unless all of the Securities of a specified tenor are to be redeemed), the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities
of such series subject to such redemption and not previously called for
redemption, pro rata, by lot or by such method as the Trustee shall deem fair
and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities of that
series and tenor or any integral multiple thereof) of the principal amount of
Securities of such series of a denomination larger than the minimum authorized
denomination for Securities of that series. If less than all of the
Securities of such series and of a specified tenor are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 45 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities
of such series and specified tenor not previously called for redemption in
accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in part,
to the portion of the principal amount of such Securities which has been or is
to be redeemed.
Section 11.4. Notice of Redemption. Notice of redemption
shall be given by first-class mail, postage prepaid, mailed not less than 30
nor more than 60 days prior to the Redemption Date, to each Holder of
Securities to be redeemed. Failure to give notice by mailing in the manner
herein provided to the Holder of any Securities designated for redemption as a
whole or in part, or any defect in the notice to any such Holder, shall not
affect the validity of the proceedings for the redemption of any other
Securities or portion thereof.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all the Outstanding Securities of any Series
and tenor are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be
redeemed;
(d) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and that
interest thereon will cease to accrue on and after said date;
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price;
(f) that the redemption is for a sinking fund, if such is the
case;
(g) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the Holder of such
Security will receive, without charge, a new Security or Securities of
authorized denominations for the principal amount thereof remaining
unredeemed; and
(h) the CUSIP Number or the Euroclear or the Cedel Bank
reference numbers of such Securities, if any (or any other numbers used by
a Depository to identify such Securities).
Notice of redemption of Securities to be redeemed shall be
given by the Company or, on Company Request, by the Trustee at the expense of
the Company.
Section 11.5. Deposit of Redemption Price. On or before 10:00
a.m., New York City time, any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 10.3) an
amount of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all
the Securities which are to be redeemed on that date.
Section 11.6. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price) such Securities shall cease to
bear interest. Upon surrender of any such Security for redemption in
accordance with said notice, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest to the Redemption Date;
provided, however, that installments of interest whose Stated Maturity is on or
prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Regular or Special Record Dates according to
their terms and the provisions of Section 3.7.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Security.
Section 11.7. Securities Redeemed in Part. Any Security which
is to be redeemed only in part shall be surrendered at an office or agency of
the Company at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or the Holder's attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and make available for
delivery to the Holder of such Security without service charge, a new Security
or Securities of the same series and of like tenor of any authorized
denomination as requested by such Holder, in aggregate principal amount equal
to and in exchange for the unredeemed portion of the principal of the Security
so surrendered.
If a Global Security is so surrendered, the Company shall
execute, and the Trustee shall authenticate and deliver to the Depository,
without service charge, a new Global Security in a denomination equal to and
in exchange for the unredeemed portion of the principal of the Global Security
so surrendered.
ARTICLE 12
Intentionally Left Blank
ARTICLE 13
Defeasance and Covenant
Section 13.1. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance. If pursuant to Section 3.1
provision is made for either or both of (a) defeasance of the Securities of a
series under Section 13.2 or (b) covenant defeasance of the Securities of a
series under Section 13.3 to apply to Securities of any series, then the
provisions of such Section or Sections, as the case may be, together with the
other provisions of this Article 13, shall be applicable to the Securities of
such series, and the Company may at its option, at any time, with respect to
the Securities of such series, elect to have either Section 13.2 (if
applicable) or Section 13.3 (if applicable) be applied to the Outstanding
Securities of such series upon compliance with the conditions set forth below
in this Article 13.
Section 13.2. Defeasance and Discharge. Upon the Company's
exercise of the above option applicable to this Section, the Company shall be
deemed to have been discharged from its obligations with respect to the
Outstanding Securities of such series on the date the conditions set forth
below are satisfied (hereinafter, "defeasance").
For this purpose, such defeasance means that the Company shall
be deemed to have paid and discharged the entire indebtedness represented by
the Outstanding Securities of such series and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following which
shall survive until otherwise terminated or discharged hereunder:
(a) the rights of Holders of Outstanding Securities of such
series to receive, solely from the trust fund described in Section 13.4 and
as more fully set forth in such Section, payments in respect of the
principal of (and premium, if any) and interest, if any, on and Additional
Amounts, if any, with respect to, such Securities when such payments are
due;
(b) the Company's obligations with respect to such
Securities under Sections 3.4, 3.5, 3.6, 6.7, 10.2, 10.3 and 10.6 (but only
to the extent that any Additional Amounts payable exceed the amount
deposited in respect of such Additional Amounts pursuant to Section 13.4(a)
below);
(c) the rights, powers, trusts, duties and immunities and other
provisions in respect of the Trustee hereunder; and
(d) this Article 13.
Subject to compliance with this Article 13, the Company may
exercise its option under this Section 13.2 notwithstanding the prior exercise
of its option under Section 13.3 with respect to the Securities of such series.
Section 13.3. Covenant Defeasance. Upon the Company's exercise
of the above option applicable to this Section, the Company shall be released
from its obligations under Sections 8.1, 10.5, 5.1(c) (as to Sections 8.1 and
10.5), 5.1(e), 5.1(f) and 5.1(g) (if Section 5.1(g) is specified as applicable
to the Securities of such series) with respect to the Outstanding Securities
of such series on and after the date the conditions set forth below are
satisfied (hereinafter, "covenant defeasance").
For this purpose, such covenant defeasance means that, with
respect to the Outstanding Securities of such series, the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such Section, whether directly or indirectly by
reason of any reference elsewhere herein to any such Section or by reason of
any reference in any such Section to any other provision herein or in any
other document, but the remainder of this Indenture and such Securities shall
be unaffected thereby. Following a covenant defeasance, payment of the
Securities of such series may not be accelerated because of an Event of
Default specified above in this Section 13.3.
Section 13.4. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section 13.2 or
Section 13.3 to the Outstanding Securities of such series.
(a) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 6.9 who shall agree to comply with the provisions
of this Article 13 applicable to it) as trust funds in trust for the
purpose of making the following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such
Securities, (i) an amount in Dollars or in such Foreign Currency in which
such Securities are then specified as payable at Stated Maturity, or (ii)
Government Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide, on
the due date of any payment, money in an amount, or (iii) a combination
thereof, sufficient, without reinvestment, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee (or other qualifying trustee) to pay
and discharge, (A) the principal of (and premium, if any, on) and each
installment of principal of (and premium, if any) and interest on the
Outstanding Securities of such series on the Stated Maturity of such
principal or installment of principal or interest and (B) any mandatory
sinking fund payments or analogous payments applicable to the Outstanding
Securities of such series on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of such
Securities. Before such a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of any series of Securities
at a future date in accordance with any redemption provisions contained in
the Supplemental Indenture relating to such series, which shall be given
effect in applying the foregoing.
(b) No Event of Default or event with which notice of lapse
of time or both would become an Event of Default with respect to the Securities
of such series shall have occurred and be continuing on the date of such
deposit and, with respect to defeasance only, at any time during the period
ending on the 123rd day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until the expiration of
such period).
(c) Such defeasance or covenant defeasance shall not cause the
Trustee for the Securities of such series to have a conflicting interest for
purposes of the Trust Indenture Act with respect to any securities of the
Company.
(d) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under, this Indenture
or any other agreement or instrument to which the Company is a party or by
which it is bound.
(e) Such defeasance or covenant defeasance shall not cause any
Securities of such series then listed on any registered national securities
exchange under the Securities Exchange Act of 1934, as amended, to be deleted.
(f) In the case of an election under Section 13.2, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (ii) since the date of this Indenture there has
been a change in the applicable federal income tax law, in either case to the
effect that, and based thereon such opinion shall confirm that, the Holders of
the Outstanding Securities of such series will not recognize income, gain or
loss for federal income tax purposes as a result of such defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such defeasance had not
occurred.
(g) In the case of an election under Section 13.3, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that
the Holders of the Outstanding Securities of such series will not recognize
income, gain or loss for federal income tax purposes as a result of such
covenant defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such covenant defeasance had not occurred.
(h) Such defeasance or covenant defeasance shall be effected
in compliance with any additional terms, conditions or limitations which
may be imposed on the Company in connection therewith pursuant to Section
3.1.
(i) The Company shall have delivered to the Trustee an
Officer's Certificate or an Opinion of Counsel, stating that all conditions
precedent provided for in the Indenture relating to either the defeasance
under Section 13.2 or the covenant defeasance under Section 13.3 (as the
case may be) have been complied with.
Section 13.5. Deposited Money and Government Obligations to be
Held in Trust; Other Miscellaneous Provisions. Subject to the provisions of
the last paragraph of Section 13.3, all money and Government Obligations
(including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee -- collectively, for purposes of this Section 13.5, the
"Trustee") pursuant to Section 3.10 in respect of the Outstanding Securities
of such series shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any Paying Agent (but not including the
Company acting as its own Paying Agent) as the Trustee may determine, to the
Holders of such Securities, of all sums due and to become due thereon in
respect of principal (and premium, if any) and interest and Additional
Amounts, if any, but such money need not be segregated from other funds except
to the extent required by law.
Unless otherwise specified in or pursuant to this Indenture or
any Security, if after a deposit referred in Section 13.2 has been made, (a)
Holder of a Security in respect of which such deposit was made is entitled to,
and does, elect pursuant to Section 3.1 or the terms of such Security to
receive payment in a Currency other than that in which the deposit pursuant to
Section 13.2 has been made in respect of such Security, or (b) a Conversion
Event occurs in respect of the Foreign Currency in which the deposit pursuant
to Section 13.2 has been made, the indebtedness represented by such Security
shall be deemed to have been, and will be, fully discharged and satisfied
through the payment of the principal of (and premium, if any), and interest, if
any, on and Additional Amounts, if any, with respect to, such Security as the
same becomes due out of the proceeds yielded by converting (from time to time
as specified below in the case of any such election) the amount or other
property deposited in respect of such Security into the Currency in which such
Security becomes payable as a result of such election or Conversion Event
based on (i) in the case of payments made pursuant to clause (a) above, the
applicable market exchange rate for such Currency in effect on the second
Business Day prior to each payment date, or (ii) with respect to a Conversion
Event, the applicable market exchange rate for such Foreign Currency in effect
(as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the Government
Obligations deposited pursuant to Section 13.4 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the Outstanding Securities of such
series.
Anything in this Article 13 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations held by it as provided in Section
13.4 which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee, are in excess of the amount thereof which would then be required
to be deposited to effect an equivalent defeasance or covenant defeasance.
ARTICLE 14
Sinking Funds
Section 14.1. Applicability of Article. The provisions of
this Article shall be applicable to any sinking fund for the retirement of
Securities of a series, except as otherwise permitted or required in or
pursuant to this Indenture or any Security of such series issued pursuant to
this Indenture.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount
provided for by the terms of Securities of such series is herein referred to as
an "optional sinking fund payment." If provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 14.2. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for
by the terms of Securities of such series and this Indenture.
Section 14.2. Satisfaction of Sinking Fund Payments with
Securities. The Company may (a) deliver Outstanding Securities of a series
(other than any of such Securities previously called for redemption) and (b)
apply as a credit Securities of such series which have been redeemed either at
the election of the Company pursuant to the terms of such series of
Securities, or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any sinking fund payment required to be
made pursuant to the terms of such Securities, as provided by the terms of
such Securities, provided that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
required sinking fund payment shall be reduced accordingly.
Section 14.3. Redemption of Securities for Sinking Fund. Not
less than 75 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officer's Certificate
specifying the amount of the next ensuing mandatory sinking fund payment for
such series pursuant to the terms of such series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 14.2, and the optional amount, if any, to be added in cash
to the next ensuing mandatory sinking fund payment, hereof and will also
deliver to the Trustee any Securities to be so delivered. Not less than 45
days prior to each such sinking fund payment date, the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 11.3 and cause notice of the redemption thereof to be
given the name of and at the expense of the Company in the manner provided in
Section 11.4. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
11.6 and 11.7.
ARTICLE 15
Securities in Foreign Currencies
Section 15.1. Applicability of Article. Whenever this
Indenture provides for (a) any action by, or the determination of any of the
rights of, Holders of Securities of any series in which not all of such
Securities are denominated in the same Currency, or (b) any distribution to
Holders of Securities, in the absence of any provision to the contrary in this
Indenture or the Securities, any amount in respect of any Security denominated
in a Currency other than Dollars shall be treated for any such action or
distribution as that amount of Dollars that could be obtained for such amount
on such reasonable basis of exchange and as of the record date with respect to
Securities of such series (if any) for such action, determination of rights or
distribution (or, if there shall be no applicable record date, such other date
reasonably proximate to the date of such action, determination of rights or
distribution) as the Company may specify in a written notice to the Trustee or,
in the absence of such written notice, as the Trustee may determine.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the day and year first above written.
THOMAS & BETTS CORPORATION,
Issuer
By _______________________________________
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By _______________________________________
Name:
Title:
SCHEDULE I
THOMAS & BETTS CORPORATION
AND
THE BANK OF NEW YORK,
as Trustee
_______________________________________
Supplemental Indenture
No. __
Dated as of _____________, ______
_______________________________________
___% Notes due __________________, ______
SUPPLEMENTAL INDENTURE NO. ___, dated as of __________, _____
between Thomas & Betts Corporation, a Tennessee Corporation (the "Company")
and The Bank of New York, a New York banking corporation (herein called the
"Trustee") as Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company and the Trustee have executed and delivered an
Indenture dated as of August 1, 1998, as amended or supplemented (the
"Indenture") to provide for the issuance from time to time of the Company's
Securities.
Sections 2.1 and 3.1 of the Indenture provide that the form and
terms of Securities of any series may be established pursuant to an indenture
supplemental to the Indenture.
All things necessary to make the Securities, when executed by
the Company and authenticated and delivered hereunder and under the Indenture
and duly issued by the Company and to make this Supplemental Indenture No. ___
a valid agreement of the Company, in accordance with their and its terms, have
been done.
NOW, THEREFORE, this Indenture WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the holders hereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of the holders of the Securities of the series
hereby established, as follows:
ARTICLE 1
Relation to the Indenture; Definitions and Other Provisions of
General Application
Section 1.1. Relation to the Indenture. This Supplemental
Indenture No. ___ constitutes an integral part of the Indenture.
Section 1.2. Definitions and Other Provisions of General
Application. For all purposes of this Supplemental Indenture No. ___ unless
otherwise specified herein:
(a) all terms defined in this Indenture which are used and not
otherwise defined herein shall have the meanings they are given in the
Indenture; and
(b) the provisions of general application stated in
Section 1.1 of the Indenture shall apply to this Supplemental Indenture No.
__, except that the words "herein," "hereof," "hereto" and "hereunder" and
other words of similar import refer to this Supplemental Indenture as a
whole and not to the Indenture or any particular Article, Section or other
subdivision of the Indenture or this Supplemental Indenture No. ___.
ARTICLE 2
The Series of Notes
Section 2.1. Title. There shall be a series of Securities
designated the "___% Notes due __________, __________" (the "Notes").
Section 2.2. Principal Amount. The aggregate principal amount
of the Notes which may be authenticated and delivered under this Supplemental
Indenture shall not exceed $__________ (except for Notes which may be
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Notes pursuant to Sections 3.4, 3.5, 3.6, 9.6 or
11.7 of the Indenture).
Section 2.3. Maturity. The date on which the principal of the
Notes shall be payable shall be __________.
Section 2.4. Interest. [The Notes shall bear interest at the
rate of [ ]% per annum. Interest shall accrue from __________, _____ or
from the most recent Interest Payment Date to which interest has been paid or
provided for. Accrued interest shall be payable on _________, _____ and on
each _____ and _____ thereafter, to the persons in whose names the Notes are
registered at the close of business on the preceding _____ or _____, as the
case may be.]
[Insert other interest provisions if necessary]
Section 2.5. Place of Payment. [The Place of Payment for the
Notes shall be at the Corporate Trust office of the Trustee at ____________ or
such other office of the Paying Agent as the Paying Agent may reasonably
request by notice to the Company and the Trustee (if the Paying Agent is not
the Trustee).
Section 2.6. Redemption.
[Insert redemption terms]
The provisions of Article 13 of the Indenture [shall/shall not]
apply to the Notes.
Section 2.7. Intentionally Left Blank.
Section 2.8. Form of Notes. The Notes shall be in the form of
Exhibit A attached hereto.
Section 2.9. Currency.
[Insert currency terms.]
Section 2.10. Sinking Funds.
[Insert sinking fund terms.]
Section 2.11. Additional Amounts. The provisions of Section
10.6 of the Indenture [shall/shall not] apply to the Notes.
ARTICLE 3
Miscellaneous Provisions
Section 3.1. Supplemental Indenture. The Indenture, as
supplemented and amended by this Supplemental Indenture No. __, is in all
respects hereby adopted, ratified and confirmed.
Section 3.2. Counterparts. This Supplemental Indenture No. __
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.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture No. __ to be duly executed, as of the day and year
first written above.
THOMAS & BETTS CORPORATION
By _______________________________________
Name:
Title:
THE BANK OF NEW YORK
By _______________________________________
Name:
Title:
Exhibit A
to Indenture
REGISTERED
No.
PRINCIPAL AMOUNT: $ __________________
CUSIP NO.
THOMAS & BETTS CORPORATION
_____% Note due ______________, ______
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITORY") (55
WATER STREET, NEW YORK, NEW YORK), TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY, AND ANY PAYMENT HEREON IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS NOTE IS EXCHANGED IN WHOLE OR IN PART FOR
NOTES IN CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY THE DEPOSITORY TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO THE
DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
THOMAS & BETTS CORPORATION, a Tennessee corporation, (the
"Company" which term includes any successor Person under the Indenture
referred to on the reverse hereof), for value received, hereby promises to pay
CEDE & CO.
C/O THE DEPOSITORY TRUST COMPANY
55 WATER STREET
NEW YORK, NEW YORK 10041
or registered assigns, the principal sum of
DOLLARS
on , (the "Maturity Date") and to pay interest thereon from
, or from the most recent "Interest Payment Date" to
which interest has been paid or duly provided for, semi-annually on
and of each year, commencing , , and on
the Maturity Date, at the rate of % per annum, until the principal
hereof is paid or duly provided for. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
the Indenture, be paid to the Person in whose name this Note (or one or more
Predecessor Notes) is registered at the close of business on the "Regular
Record Date" for such interest, which shall be the or
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly
provided for shall forthwith cease to be payable to the registered Holder on
such Regular Record Date and may either be paid to the Person in whose name
this Note (or one or more Predecessor Notes) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest
to be fixed by the Trustee referred to on the reverse hereof, notice of which
shall be given to Holders of Notes of this series not less than 10 days prior
to such Special Record Date, or be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Notes of this series may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture.
The Company will at all times appoint and maintain a Paying
Agent (which may be the Trustee) authorized by the Company to pay the
principal of and interest on any Notes of this series on behalf of the Company
and having an office or agency in New York, New York and in such other cities,
if any, as the Company may designate in writing to the Trustee (the "Place of
Payment") where Notes of this series may be presented or surrendered for
payment and where notices, designations or requests in respect for payments
with respect to Notes of this series may be served. The Company has initially
appointed The Bank of New York as such Paying Agent.
Interest payments on this Note will be computed and paid on the
basis of a 360-day year of twelve 30-day months. Interest payable on this
Note on any Interest Payment Date and on the Maturity Date will include
interest accrued from and including the most recent Interest Payment Date to
which interest has been paid or duly provided for (or from and including
, , if no interest has been paid on this Note) to but excluding
such Interest Payment Date or the Maturity Date, as the case may be.
If any Interest Payment Date or the Maturity Date falls on a
day that is not a Business Day (as defined below), principal or interest
payable with respect to such Interest Payment Date or Maturity Date, as the
case may be, will be paid on the next succeeding Business Day with the same
force and effect as if it were paid on the date such payment was due, and no
interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date or the Maturity Date, as the case may be. "Business
Day" means any day other than Saturday, Sunday or other day on which banking
institutions in New York are obligated or authorized by law to close.
Reference is hereby made to the further provisions of this Note
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the Certificate of Authentication hereon has been
executed by the Trustee by manual signature, this Note shall not be entitled
to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
THOMAS & BETTS CORPORATION
By:_______________________________________
Name:
Title:
Attest:
_______________________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated therein referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK
As Trustee
By:_______________________________________
Authorized Signatory
Dated:____________________________________
THOMAS & BETTS CORPORATION
____% Note due _____________, ______
This Note is one of a duly authorized issue of securities of the Company
(herein called the "Notes"), limited in aggregate principal amount to $
(except as otherwise provided in the Indenture), issued and to be
issued as one series of debt securities of the Company under an Indenture,
dated as of August 1, 1998, as amended and supplemented from time to time (the
"Indenture"), between the Company and The Bank of New York, as Trustee (the
"Trustee," which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Trustee and the Holders of the
Notes and of the terms upon which the Notes are, and are to be, authenticated
and delivered. In addition to the Notes, the Company is authorized to issue
an unlimited amount of debt securities in one or more series (herein
collectively with the Notes called the "Debt Securities") under the Indenture.
This Note is not redeemable at the option of the Company or at
the option of the Holder prior to the Maturity Date [and is not subject to any
sinking fund].
In case an Event of Default with respect to the Notes of this
series shall occur and be continuing, the principal of the Notes of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture contains provisions for defeasance at any time of
(i) the entire indebtedness of this Note or (ii) certain respective covenants
and Events of Default with respect to this Note, in each case upon compliance
with certain conditions set forth therein, which provisions apply to the Notes.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Debt
Securities or each series to be affected under the Indenture at any time by
the Company and the Trustee with the consent of a majority in principal amount
of each series of Debt Securities to be affected if less than all series are
to be affected by such modification or amendment. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Debt Securities of each series at the time Outstanding, on behalf of
the Holders of all Debt Securities of such series, to waive compliance by the
Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Note and of any Note or Notes issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, places and rate, and in the currency herein prescribed.
As provided in the Indenture and subject to certain limitations
herein and therein set forth, the transfer of this Note is registrable in the
Security Register, upon surrender of this Note for registration of transfer at
the office or agency of the Company in the Place of Payment, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar, duly executed by, the Holder hereof or its
attorney duly authorized in writing, and thereupon one or more new Notes of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
As provided in the Indenture and subject to certain limitations
herein and therein set forth, Notes of this series issued in definitive
registered form are exchangeable for the same aggregate principal amount of
Notes of this series and of like tenor and authorized denominations, as
requested by the Holder surrendering the same.
The Notes of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple of $1,000
in excess thereof.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
No recourse under or upon any obligation, covenant or agreement
of the Corporation in the Indenture or any indenture supplemental thereto or in
any Note, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, officer or director, as
such, of the Corporation or of any successor Corporation, either directly or
through the Corporation or any successor Corporation, 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.
At the option of the Corporation and upon satisfaction of
certain conditions specified in the Indenture, either (a) the Corporation
shall be deemed to have paid and discharged the entire indebtedness on the
Notes or (b) the Corporation need not comply with certain covenants contained
in the Indenture, in each case upon the deposit by the Corporation with the
Trustee in trust for the Holders of the Notes of an amount of funds or
obligations issued or guaranteed by the United States of America sufficient to
pay and discharge upon the stated maturity thereof the entire indebtedness
evidenced by the Notes, all as provided in the Indenture .
This Note shall be governed by and construed in accordance with
the laws of the State of New York.
All terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, 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)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assigns(s) and transfer(s)
unto__________________________________________________________________________
______________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
_____________________________
/____________________________/
__________________________________________________________________
__________________________________________________________________
(Please Print or Type Name and Address
Including Postal Zip Code of Assignee)
__________________________________________________________________
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints
__________________________________________________________________
__________________________________________________________________
to transfer said Note on the books of the Company, with full power of
substitution in the premises.
Dated:_____________________________
Signature Guaranteed
__________________________________
NOTICE: Signature must be guaranteed NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within Note in every particular,
without alteration or enlargement or
any change whatever.
Exhibit 4(c)
AMENDED AND RESTATED CHARTER
OF
THOMAS & BETTS CORPORATION
ARTICLE I.
CORPORATE NAME
The name of the corporation is Thomas & Betts Corporation.
ARTICLE II.
REGISTERED AGENT AND OFFICE
The registered agent of the corporation is C T Corporation System,
and the registered office of the corporation is at 530 Gay Street,
Knoxville, County of Knox, Tennessee 37902.
ARTICLE III.
PRINCIPAL OFFICE
The principal office of the corporation is at 8155 T&B Boulevard,
Memphis, Tennessee 38125.
ARTICLE IV.
INCORPORATORS
The incorporators are T. Kevin Dunnigan and Clyde R. Moore, 1555
Lynnfield Street, Memphis, Tennessee 38119.
ARTICLE V.
NATURE AND PURPOSES OF CORPORATION
The corporation is for profit. The purposes for which this
corporation is organized are to engage in and to do any lawful act
concerning any or all lawful business for which corporations now or at any
time hereafter may be incorporated under the Tennessee Business Corporation
Act, as amended from time to time.
ARTICLE VI.
AUTHORIZED SHARES
The corporation is authorized to issue 251,000,000 shares,
consisting of 250,000,000 shares of Common Stock, $.10 par value, and
1,000,000 shares of Preferred Stock, $.10 par value. The designations,
relative rights, preferences and limitations of the shares of each class,
or the manner in which such relative rights, preferences and limitations
are determined, are as follows:
Common Stock. The Common Stock shall have full voting rights and
shall entitle the holders thereof to one vote for each share of Common Stock
held.
Preferred Stock. Subject to the provisions hereof, the Board of
Directors is hereby expressly authorized to determine, in whole or in part,
the preferences, limitations and relative rights of the Preferred Stock as a
class, and to issue shares of Preferred Stock in series, and to fix from
time to time before issuance the number of shares to be included in each
series and the designations, relative rights, preferences and limitations
of all shares of each series. The authority of the Board of Directors with
respect to each series shall include, without limitation, the determination
of any or all of the following matters:
A. The number of shares constituting such series and the
designation thereof to distinguish the shares of such series from the
shares of all other series;
B. The dividend rate on the shares of such series and whether
such dividends shall be cumulative and, if cumulative, the date from which
dividends shall accumulate;
C. The redemption price or prices for shares of such series, if
redeemable, and the terms and conditions of such redemption;
D. The preference, if any, of shares of such series in the event
of any voluntary or involuntary liquidation, dissolution or winding up of
the corporation;
E. The voting rights, if any, of shares of such series in
addition to the voting rights prescribed by law and the terms of exercise
of such voting rights;
F. The right, if any, of shares of such series to be converted
into shares of any other series or class and the terms and conditions of
such conversion;
G. The terms or amount of any sinking fund provided for the
purchase or redemption of such series; and
H. Any other relative rights, preferences and limitations of such
series.
The shares of each series may vary from the shares of any other
series as to any of such matters.
Series A Preferred Participating Cumulative Preferred Stock.
SECTION 1. Designation and Number of Shares. The shares of such
series shall be designated as "Series A Participating Cumulative Preferred
Stock" (the "Series A Preferred Stock"), and the number of shares
constituting such series shall be 300,000. Such number of shares of the
Series A Preferred Stock may be increased or decreased by resolution of the
Board of Directors; provided that no decrease shall reduce the number of
shares of Series A Preferred Stock to a number less than the number of
shares then outstanding plus the number of shares issuable upon exercise or
conversion of outstanding rights, options or other securities issued by the
Corporation.
SECTION 2. Dividends and Distributions.
(a) The holders of Series A Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of Directors out of funds
legally available for the purpose, quarterly dividends payable on March 31,
June 30, September 30 and December 31 of each year (each such date being
referred to herein as a "Quarterly Dividend Payment Date"), commencing on
the first Quarterly Dividend Payment Date after the first issuance of any
share or fraction of a share of Series A Preferred Stock, in an amount per
share (rounded to the nearest cent) equal to the greater of (i) $1.00 and
(ii) subject to the provision for adjustment hereinafter set forth, 200
times the aggregate per share amount of all cash dividends or other
distributions and 200 times the aggregate per share amount of all non-cash
dividends or other distributions (other than (A) a dividend payable in
shares of Common Stock, no par value per share, of the Corporation (the
"Common Stock") or (B) a subdivision of the outstanding shares of Common
Stock (by reclassification or otherwise)), declared on the Common Stock
since the immediately preceding Quarterly Dividend Payment Date, or, with
respect to the first Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series A Preferred Stock.
If the Corporation shall at any time after December 3, 1997 (the "Rights
Declaration Date") pay any dividend on Common Stock payable in shares of
Common Stock or effect a subdivision or combination of the outstanding
shares of Common Stock (by reclassification or otherwise) into a greater or
lesser number of shares of Common Stock, then in each such case the amount
to which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event under clause 2(a)(ii) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such
event.
(b) The Corporation shall declare a dividend or distribution on
the Series A Preferred Stock as provided in paragraph 2(a) above
immediately after it declares a dividend or distribution on the Common
Stock (other than as described in clauses 2(a)(ii)(A) and 2(A)(ii)(B)
above); provided that if no dividend or distribution shall have been
declared on the Common Stock during the period between any Quarterly
Dividend Payment Date and the next subsequent Quarterly Dividend Payment
Date (or, with respect to the first Quarterly Dividend Payment Date, the
period between the first issuance of any share or fraction of a share of
Series A Preferred Stock and such first Quarterly Dividend Payment Date), a
dividend of $1.00 per share on the Series A Preferred Stock shall
nevertheless be payable on such subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such shares of Series A
Preferred Stock, unless the date of issue of such shares is on or before
the record date for the first Quarterly Dividend Payment Date, in which
case dividends on such shares shall begin to accrue and be cumulative from
the date of issue of such shares, or unless the date of issue is a date
after the record date for the determination of holders of shares of Series
A Preferred Stock entitled to receive a quarterly dividend and on or before
such Quarterly Dividend Payment date, in which case dividends shall begin
to accrue and be cumulative from such Quarterly Dividend Payment Date.
Accrued but unpaid dividends shall not bear interest. Dividends paid on
shares of Series A Preferred Stock in an amount less than the total amount
of such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at the
time outstanding. The Board of Directors may fix a record date for
determination of holders of shares of Series A Preferred Stock entitled to
receive payment of a dividend or distribution declared thereon, which
record date shall not be more than 60 days prior to the date fixed for the
payment thereof.
SECTION 3. Voting Rights. In addition to any other voting
rights required by law, the holders of shares of Series A Preferred Stock
shall have the following voting rights:
(a) Subject to the provision for adjustment hereinafter set
forth, each share of Series A Preferred Stock shall entitle the holder
thereof to 200 votes on all matters submitted to a vote of shareholders of
the Corporation. If the Corporation shall at any time after the Rights
Declaration Date pay any dividend on Common Stock payable in shares of
Common Stock or effect a subdivision or combination of the outstanding
shares of Common Stock (by reclassification or otherwise) into a greater or
lesser number of shares of Common Stock, then in each such case the number
of votes per share to which holders of shares of Series A Preferred Stock
were entitled immediately prior to such event shall be adjusted by
multiplying such number by a fraction the numerator of which is the number
of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) Except as otherwise provided herein or by law, the holders
of shares of Series A Preferred Stock and the holders of shares of Common
Stock shall vote together as a single class on all matters submitted to a
vote of shareholders of the Corporation.
(c) (i) If at any time dividends on any Series A Preferred
Stock shall be in arrears in an amount equal to six quarterly dividends
thereon, the occurrence of such contingency shall mark the beginning of a
period (herein called a "default period") which shall extend until such
time when all accrued and unpaid dividends for all previous quarterly
dividend periods and for the current quarterly dividend period on all
shares of Series A Preferred Stock then outstanding shall have been
declared and paid or set apart for payment. During each default period,
all holders of Preferred Stock and any other series of Preferred Stock then
entitled as a class to elect directors, voting together as a single class,
irrespective of series, shall have the right to elect two Directors.
(ii) During any default period, such voting right of the holders
of Series A Preferred Stock may be exercised initially at a special meeting
called pursuant to subparagraph 3(c)(iii) hereof or at any annual meeting
of shareholders, and thereafter at annual meetings of shareholders,
provided that neither such voting right nor the right of the holders of any
other series of Preferred Stock, if any, to increase, in certain cases, the
authorized number of Directors shall be exercised unless the holders of 10%
in number of shares of Preferred Stock outstanding shall be present in
person or by proxy. The absence of a quorum of holders of Common Stock
shall not affect the exercise by holders of Preferred Stock of such voting
right. At any meeting at which holders of Preferred Stock shall exercise
such voting right initially during an existing default period, they shall
have the right, voting as a class, to elect Directors to fill such
vacancies, if any, in the Board of Directors as may then exist up to two
Directors or, if such right is exercised at an annual meeting, to elect two
Directors. If the number which may be so elected any special meeting does
not amount to the required number, the holders of the Preferred Stock shall
have the right to make such increase in the number of Directors as shall be
necessary to permit the election by them of the required number. After the
holders of the Preferred Stock shall have exercise their right to elect
Directors in any default period and during the continuance of such period,
the number of Directors shall not be increased or decreased except by vote
of the holders of Preferred Stock as herein provided or pursuant to the
rights of any equity securities ranking senior to or pari passu with the
Series A Preferred Stock.
(iii) Unless the holders of Preferred Stock shall, during an
existing default period, have previously exercised their right to elect
Directors, the Board of Directors may order, or any shareholder or
shareholders owning in the aggregate not less than 10% of the total number
of shares of Preferred Stock outstanding, irrespective of series, may
request, the calling of a special meeting of holders of Preferred Stock,
which meeting shall thereupon be called by the President, a Vice President
or the Secretary of the Corporation. Notice of such meeting and of any
annual meeting at which holders of Preferred Stock are entitled to vote
pursuant to this paragraph 3(c)(iii) shall be given to each holder of
record of Preferred Stock by mailing a copy of such notice to him or her at
his or her last address as the same appears on the books of the
Corporation. Such meeting shall be called for a time not earlier than 20
days and not later than 60 days after such order or request or in default
of the calling of such meeting within 60 days after such order or request,
such meeting may be called on similar notice by any shareholder or
shareholders owning in the aggregate not less than 10% of the total number
of shares of Preferred Stock outstanding, irrespective of series.
Notwithstanding the provisions of this paragraph 3(c)(iii), no such special
meeting shall be called during the period within 60 days immediately
preceding the date fixed for the next annual meeting of shareholders.
(iv) In any default period, the holders of Common Stock, and
other classes of stock of the Corporation if applicable, shall continue to
be entitled to elect the whole number of Directors until the holders of
Preferred Stock shall have exercised their right to elect two Directors
voting as a class, after the exercise of which right (x) the Directors so
elected by the holders of Preferred Stock shall continue in office until
their successors shall have been elected by such holders or until the
expiration of the default period, and (y) any vacancy in the Board of
Directors may (except as provided in paragraph 3(c)(ii) hereof) be filled
by vote of a majority of the remaining Directors theretofore elected by the
holders of the class of stock which elected the Director whose office shall
have become vacant. References in this paragraph 3(c) to Directors elected
by the holders of a particular class of stock shall include Directors
elected by such Directors to fill vacancies as provided in clause (y) of
the foregoing sentence.
(v) Immediately upon the expiration of a default period, (x) the
right of the holders of Preferred Stock as a class to elect Directors shall
cease, (y) the term of any Directors elected by the holders of Preferred
Stock as a class shall terminate, and (z) the number of Directors shall be
such number as may be provided for in the charter or bylaws irrespective of
any increase made pursuant to the provisions of paragraph 3(c)(ii) hereof
(such number being subject, however, to change thereafter in any manner
provided by law or in the charter or bylaws). Any vacancies in the Board
of Directors effected by the provisions of clauses (y) and (z) in the
preceding sentence may be filled by a majority of the remaining Directors.
(d) The Charter of the Corporation shall not be amended in any
manner (whether by merger or otherwise) so as to adversely affect the
powers, preferences or special rights of the Series A Preferred Stock
without the affirmative vote of the holders of a majority of the
outstanding shares of Series A Preferred Stock, voting separately as a
class.
(e) Except as otherwise provided herein, holders of Series A
Preferred Stock shall have no special voting rights, and their consent
shall not be required for taking any corporate action.
SECTION 4. Certain Restrictions.
(a) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on outstanding shares
of Series A Preferred Stock shall have been paid in full, the Corporation
shall not:
(i) declare or pay dividends on, or make any other distributions
on, any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to
the Series A Preferred Stock;
(ii) declare or pay dividends on, or make any other distributions on,
any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up)
with the Series A Preferred Stock, except dividends paid
ratably on the Series A Preferred Stock and all such other
parity stock on which dividends are payable or in arrears in
proportion to the total amounts to which the holders of all
such shares are then entitled;
(iii) redeem, purchase or otherwise acquire for value any shares of
stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A
Preferred Stock; provided that the Corporation may at any
time redeem, purchase or otherwise acquire shares of any such
junior stock in exchange for shares of stock of the
Corporation ranking junior (as to dividends and upon
dissolution, liquidation or winding up) to the Series A
Preferred Stock; or
(iv) redeem, purchase or otherwise acquire for value any shares of
Series A Preferred Stock, or any shares of stock ranking on a
parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Stock,
except in accordance with a purchase offer made in writing or
by publication (as determined by the Board of Directors) to
all holders of Series A Preferred Stock and all such other
parity stock upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and
other relative rights and preferences of the respective
series and classes, shall determine in good faith will result
in fair and equitable treatment among the respective series
or classes.
(b) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for value any shares of stock
of the Corporation unless the Corporation could, under paragraph 4(a),
purchase or otherwise acquire such shares at such time and in such manner.
SECTION 5. Reacquired Shares. Any shares of Series A Preferred
Stock redeemed, purchased or otherwise acquired by the Corporation in any
manner whatsoever shall be retired and cancelled promptly after the
acquisition thereof. All such shares shall upon their cancellation become
authorized but unissued shares of Preferred Stock without designation as to
series and may be reissued as a part of a new series of Preferred Stock to
be created by resolution or resolutions of the Board of Directors as
permitted by the Charter or as otherwise permitted under Tennessee Law.
SECTION 6. Liquidation, Dissolution and Winding Up. Upon any
liquidation, dissolution or winding up of the Corporation, no distribution
shall be made (1) to the holders of shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Stock unless, prior thereto, the holders of share of
Series A Preferred Stock shall have received $1.00 per share, plus an
amount equal to accrued and unpaid dividends and distributions thereon,
whether or not declared, to the date of such payment; provided that the
holders of shares of Series A Preferred Stock shall be entitled to receive
an aggregate amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 200 times the aggregate amount to be
distributed per share to holders of Common Stock, or (2) to the holders of
stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Stock, except
distributions made ratably on the Series A Preferred Stock and all such
other parity stock in proportion to the total amounts to which the holders
of all such shares are entitled upon such liquidation, dissolution or
winding up. If the Corporation shall at any time after the Rights
Declaration Date pay any dividend on Common Stock payable in shares of
Common Stock or effect a subdivision or combination of the outstanding
shares of Common Stock (by reclassification or otherwise) into a greater or
lesser number of shares of Common Stock, then in each such case the
aggregate amount to which holders of shares of Series A Preferred Stock
were entitled immediately prior to such event under the proviso in clause
(1) of the preceding sentence shall be adjusted by multiplying such amount
by a fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which
is the number of shares of Common Stock that were outstanding immediately
prior to such event.
SECTION 7. Consolidation, Merger, Etc. If the Corporation shall
enter into any consolidation, merger, combination or other transaction in
which the shares of Common Stock are exchanged for or changed into other
stock or securities, cash or any other property, then in any such case the
shares of Series A Preferred Stock shall at the same time be similarly
exchanged for or changed into an amount per share, subject to the provision
for adjustment hereinafter set forth, equal to 200 times the aggregate
amount of stock, securities, cash or any other property, as the case may
be, into which or for which each share of Common Stock is changed or
exchanged. If the Corporation shall at any time after the Rights
Declaration Date pay any dividend on Common Stock payable in shares of
Common Stock or effect a subdivision or combination of the outstanding
shares of Common Stock (by reclassification or otherwise) into a greater or
lesser number of shares of Common Stock, then in each such case the amount
set forth in the preceding sentence with respect to the exchange or change
of shares of Series A Preferred Stock shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator
of which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
SECTION 8. No Redemption. The Series A Preferred Stock shall
not be redeemable.
SECTION 9. Rank. The Series A Preferred Stock shall rank junior
(as to dividends and upon liquidation, dissolution and winding up) to all
other series of the Corporation's preferred stock except any series that
specifically provides that such series shall rank junior to the Series A
Preferred Stock.
SECTION 10. Fractional Shares. Series A Preferred Stock may be
issued in fractions of a share which shall entitled the holder, in
proportion to such holder's fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to have the benefit of
all other rights of holders of Series A Preferred Stock.
ARTICLE VII.
MANAGEMENT OF THE CORPORATION
The property, affairs, and business of the corporation shall be
managed by a Board of Directors which shall exercise all the powers of the
corporation without action by the shareholders, except as otherwise
expressly provided by statute or by this Charter or by the Bylaws.
The Board of Directors may make Bylaws, and, from time to time
may alter, amend or repeal any Bylaws; but any Bylaw made, altered or
amended by the Board of Directors may be altered, amended or repealed by
the shareholders at any annual meeting or at any special meeting provided
notice of such proposed alteration, amendment or repeal is included in the
notice of meeting.
In discharging the duties of a director and in determining what
the director reasonably believes to be in the best interests of the
corporation, a director may, in addition to considering the effects of any
action on shareholders and to the maximum extent permitted by law, consider
any relevant factor. Without limiting the generality of the foregoing, the
Board of Directors of the corporation may consider the effects a proposed
merger, exchange, tender offer or significant disposition of the assets of
the corporation or any of the corporation's subsidiaries would have on the
corporation's employees, customers, suppliers, and the communities in which
the corporation or its subsidiaries operate or are located, and the long-
term as well as the short-term interests of the corporation and its
shareholders, including the possibility that these interests may best be
served by the continued independence of the corporation, in connection with
its deliberations concerning, and actions taken with respect to, such
merger, exchange, tender offer or significant disposition of assets.
ARTICLE VIII.
LIMITATION OF DIRECTOR LIABILITY
No person who is or was a director of the corporation, or such
person's heirs, executors or administrators, shall be personally liable to
the corporation or its shareholders for monetary damages for breach of
fiduciary duty as a director; provided, however, that this provision shall
not eliminate or limit the liability of any such party (i) for any breach
of a director's duty of loyalty to the corporation or its shareholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, or (iii) for unlawful
distributions under the Tennessee Business Corporation Act. Any repeal or
modification of the provisions of this Article VIII, directly or by the
adoption of an inconsistent provision of this Charter, shall not adversely
affect any right or protection in favor of a particular individual at the
time of such repeal or modification.
ARTICLE IX.
SPECIAL MEETING OF SHAREHOLDERS
A special meeting of shareholders may be called at any time by
the Chairman of the Board of Directors or by the President or by the Board
of Directors pursuant to a resolution adopted by a majority of the total
number of directors which the corporation would have at the time of the
adoption of such resolution if there were no vacancies, and by no other
person or persons.
ARTICLE X.
REMOVAL OF DIRECTORS AND FILLING OF VACANCIES
Any director may be removed, either with or without cause, at any
time, by the affirmative vote of at least 50% of the total number of votes
entitled to be cast at a special meeting of shareholders called for that
purpose.
Any director may be removed for cause, at any time, by a majority
vote of the entire Board of Directors at a meeting called for that purpose,
the notice of meeting for which states that a purpose of the meeting is the
removal of a director.
Any vacancy in the Board of Directors arising at any time and for
any cause, may be filled by the vote of a majority of the directors
remaining in office. Any vacancy not filled by the Board of Directors may
be filled by the shareholders at an annual meeting or at a special meeting
of shareholders called for that purpose.
Dated: May 6, 1998 THOMAS & BETTS CORPORATION
By: /s/ Clyde R. Moore
-------------------------------------
Clyde R. Moore
President and Chief Executive Officer
Attested:
/s/ Jerry Kronenberg
- -------------------------------
Jerry Kronenberg, Secretary
Exhibit 5
[COMPANY LETTERHEAD]
August 13, 1998
Thomas & Betts Corporation
8155 T&B Boulevard
Memphis, Tennessee 38125
Ladies and Gentlemen:
I am Vice President - General Counsel and Secretary of Thomas & Betts
Corporation (the "Company") and have acted as such in connection with the
preparation and filing of a Registration Statement on Form S-3, as amended
(the "Registration Statement") and the two prospectuses contained therein
(collectively, the "Prospectuses") with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Securities
Act"). The Registration Statement relates to:
(i) Debt Securities, to be issued in one or more series in an aggregate
principal amount of up to $600 million pursuant to a Trust Indenture
(the "Trust Indenture") to be entered into between the Company and
The Bank of New York, as Trustee; or
(ii) Preferred Stock and Common Stock of the Company, to be issued in an
aggregate amount of up to $600 million (collectively referred to
herein as the "Shares").
In connection with the opinions expressed below, I or attorneys under my
supervision have examined originals, or copies certified to our satisfaction,
of such agreements, documents, certificates and statements of government
officials and other papers as we have deemed necessary or advisable as a basis
for such opinions. In such examination we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as originals,
and the conformity with the originals of all documents submitted to us as
copies. I or attorneys under my supervision have also examined the form of
Trust Indenture filed with the Securities and Exchange Commission.
Based upon the foregoing, it is my opinion that:
1. The Company is a corporation duly organized and validly existing in
good standing under the laws of the State of Tennessee and is duly
authorized to carry on the business in which it is engaged.
2. The execution and delivery by the Company of the Trust Indenture has
been duly authorized.
3. Subject to (i) the determination of the terms of the Debt Securities
in accordance with the Trust Indenture, (ii) the issuance, sale,
authentication and delivery of the Debt Securities as contemplated by
the Trust Indenture and the underwriting agreement for debt securities
in substantially the form filed as Exhibit 1(a) to the Registration
Statement, and (iii) the Registration Statement being declared
effective, the Debt Securities, when issued and sold, will be legally
issued and the valid and binding obligations of the Company
enforceable in accordance with their terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws or equitable principals relating to or limiting
creditors rights generally.
4. The Shares will be legally issued, fully paid and nonassessable when
issued and sold and paid for on the terms contemplated by the
underwriting agreements for Preferred Stock and Common Stock in
substantially the forms filed as Exhibits 1(b) and 1(c),
respectively, to the Registration Statement.
I do not find it necessary for purposes of this opinion and,
accordingly, do not purport to cover herein the application of the "Blue Sky"
or securities laws of the various states to the sales of the Debt Securities
or the Shares.
I do not purport to be an expert on, or to express any opinion herein
concerning, any laws other than the laws of the State of Tennessee and the
federal laws of the United States.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to me under the heading "Legal
Matters" in the Prospectuses and in any subsequently filed Prospectus
Supplements. In giving such consent, I do not admit that I am in the category
of persons whose consent is required under Section 7 of the Securities Act.
Sincerely,
/s/ Jerry Kronenberg
---------------------------
Jerry Kronenberg, Esq.
Exhibit 12
<TABLE>
For the Years Ended Six months Six months
------------------------------------------------------ ended ended
1/2/94 1/1/95 12/31/95 12/29/96 12/28/97 6/29/97 7/5/98
------ ------ -------- -------- -------- --------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings from continuing
operations before income taxes 88,425 54,576 148,365 106,395 233,507 105,832 112,637
Add:
Interest on indebtedness and
related debt charges
in expense 36,141 32,625 34,121 51,466 52,707 26,315 23,560
Portion of rents representative
of the interest factor 9,362 9,906 10,935 11,585 11,796 5,898 5,429
Deduct:
Interest capitalized and
undistributed earnings from
<50% owned entities - (1,863) (2,848) (8,642) (13,909) (4,682) (6,688)
------- ------ ------- ------- ------- ------- -------
Earnings as adjusted 133,928 95,244 190,573 160,804 284,101 133,363 134,938
======= ====== ======= ======= ======= ======= =======
Fixed charges:
Interest on indebtedness 34,910 31,252 32,625 50,131 52,097 26,010 23,255
Amortization of debt expense 1,231 1,373 1,496 1,335 610 305 305
Portion of rents representative
of the interest factor 9,362 9,906 10,935 11,585 11,796 5,898 5,429
------- ------ ------- ------- ------- ------- -------
Total fixed charges 45,503 42,531 45,056 63,051 64,503 32,213 28,989
======= ====== ======= ======= ======= ======= =======
Ratio of earnings to fixed charges 2.9x 2.2x(1) 4.2x(2) 2.6x(3) 4.4x 4.1x 4.7x
</TABLE>
Exhibit 23(b)
Accountant's Consent
The Board of Directors
Thomas & Betts Corporation:
We consent to the use of our report incorporated herein by reference in this
Registration Statement and to the reference to our firm under the heading
"Experts" in the prospectus.
/s/KPMG Peat Marwick LLP
Memphis, Tennessee
August 13, 1998
Exhibit 23(c)
Independent Auditors' Consent
The Board of Directors
Thomas & Betts Corporation
We consent to the incorporation by reference in this Registration Statement of
Thomas & Betts Corporation on Form S-3 of our report dated February 6, 1997
(relating to the consolidated financial statements of Augat Inc. (a
wholly-owned subsidiary of Thomas & Betts Corporation since December 11, 1996)
and subsidiaries, not incorporated by reference or presented separately
herein) appearing as Exhibit 99 in the Annual Report on Form 10-K of Thomas &
Betts Corporation for the year ended December 28, 1997 and to the reference to
us under the heading "Experts" in the Prospectus, which is part of this
Registration Statement.
/s/ Deloitte & Touche LLP
Boston, Massachusetts
August 13, 1998
Exhibit 24
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below hereby constitutes and appoints Clyde R. Moore, Jerry
Kronenberg, and Fred R. Jones, and each of them, his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her name, to execute a Registration Statement on
Form S-3 to be filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, relating to a shelf registration for Debt
Securities, Common Stock and Preferred Stock of Thomas & Betts Corporation in
an aggregate amount up to $600,000,000 and any and all amendments to such
Registration Statement whether filed prior or subsequent to the time such
Registration Statement becomes effective, including amendments and any
post-effective amendments to such Registration Statement for the same offering
that are to be effective upon filing pursuant to Rule 462(b) under the
Securities Act of 1933, as amended; and hereby ratifies and confirms all that
such attorneys-in-fact and agents, or any of them, or their or his substitute
or substitutes may lawfully do or cause to be done by virtue of these presents.
Signature Title Date
- --------------------------- ------------------------ --------------
/s/ Clyde R. Moore President and Chief May 6, 1998
- --------------------------- Executive Officer and
Clyde R. Moore Director
/s/ Ernest H. Drew Director May 6, 1998
- ---------------------------
Ernest H. Drew
/s/ T. Kevin Dunnigan Chairman of the Board May 6, 1998
- --------------------------- and Director
T. Kevin Dunnigan
/s/ Jeanne K. Hauswald Director May 6, 1998
- ---------------------------
Jeanne K. Hauswald
/s/ Fred R. Jones Vice President-Finance May 6, 1998
- --------------------------- and Treasurer
Fred R. Jones
/s/ Thomas W. Jones Director May 6, 1998
- ---------------------------
Thomas W. Jones
/s/ Ronald B. Kalich, Sr. Director May 6, 1998
- ---------------------------
Ronald B. Kalich, Sr.
/s/ Robert A. Kenkel Director May 6, 1998
- ---------------------------
Robert A. Kenkel
/s/ Jerry Kronenberg Vice President-General May 6, 1998
- --------------------------- Counsel and Secretary
Jerry Kronenberg
/s/ Kenneth R. Masterson Director May 6, 1998
- ---------------------------
Kenneth R. Masterson
/s/ Thomas C. McDermott Director May 6, 1998
- ---------------------------
Thomas C. McDermott
/s/ Jean-Paul Richard Director May 6, 1998
- ---------------------------
Jean-Paul Richard
- --------------------------- Director May _, 1998
Jerre L. Stead
/s/ William H. Waltrip Director May 6, 1998
- ---------------------------
William H. Waltrip
Exhibit 25
==============================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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) |__|
------------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
------------------------
THOMAS & BETTS CORPORATION
(Exact name of obligor as specified in its charter)
Tennessee 22-1326940
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
8155 T&B Boulevard
Memphis, Tennessee 38125
(Address of principal executive offices) (Zip code)
------------------------
Debt Securities
(Title of the indenture securities)
==============================================================================
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.
- ------------------------------------------------------------------------------
Name Address
- ------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule
7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit
1 to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank
of New York, a corporation organized and existing under the laws of the
State of New York, 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 12th day of August,
1998.
THE BANK OF NEW YORK
By: /s/ Michael Culhane
----------------------------
Name: Michael Culhane
Title: Vice President
