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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report: February 3, 1999
(Date of earliest event reported)
THOMAS & BETTS CORPORATION
(Exact name of registrant as specified in its charter)
Tennessee 1-4682
(State or Other Jurisdiction (Commission File Number)
of Incorporation)
22-1326940
(IRS Employer Identification No.)
8155 T&B Boulevard
Memphis, Tennessee 38125
(Address of Principal (ZIP Code)
Executive Offices)
Registrant's Telephone Number, Including Area Code:
(901) 252-8000
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ITEM 5. OTHER EVENTS
On February 3, 1999, the Board of Directors of Thomas & Betts
Corporation (the "Registrant") amended the Bylaws of the Registrant. The
Registrant amended, among other provisions, Article 1, Section 9 of its
Bylaws to expand its advance notice provision for shareholder proposals from
60 to 90 days to 120 days.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
The exhibits are being filed in connection with, and incorporated by reference
in, the Registrant's Registration Statement on Form S-3, No. 333-61465, which
was declared effective on August 26, 1998.
(c) Exhibits
1 Distribution Agreement dated February 5, 1999 between the
Registrant and the Agents.
3 Bylaws of the Registrant.
4.1 Trust Indenture dated as of August 1, 1998 between the
Registrant and The Bank of New York, as Trustee.
4.2 Supplemental Indenture No. 1 dated February 10, 1999 between
the Registrant and The Bank of New York, as Trustee.
4.3 Form of Medium-Term Note (included as Exhibit A to Exhibit
4.2).
2
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SIGNATURE
Pursuant to the requirements of the Securities and Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
Thomas & Betts Corporation
(Registrant)
By: /s/ Fred R. Jones
-------------------------------------
Fred R. Jones
Title: Vice President-Chief Financial Officer
Date: February 11, 1999
3
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Exhibit Index
EXHIBIT DESCRIPTION OF EXHIBITS
------- -----------------------
1 Distribution Agreement dated February 5, 1999 between the
Registrant and the Agents.
3 Bylaws of the Registrant.
4.1 Trust Indenture dated as of August 1, 1998 between the
Registrant and The Bank of New York, as Trustee.
4.2 Supplemental Indenture No. 1 dated February 10, 1999 between
the Registrant and The Bank of New York, as Trustee.
4.3 Form of Medium-Term Note (included as Exhibit A to Exhibit
4.2).
4
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Exhibit 1
THOMAS & BETTS CORPORATION
Medium-Term Notes
Due Nine Months or More from Date of Issue
DISTRIBUTION AGREEMENT
February 5, 1999
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower - 10th Floor
New York, New York 10281
J.P. MORGAN SECURITIES INC.
60 Wall Street - 3rd Floor
New York, New York 10260
LEHMAN BROTHERS INC.
3 World Financial Center
New York, New York 10285
MORGAN STANLEY & CO. INCORPORATED
1585 Broadway - 2nd Floor
New York, New York 10036
Ladies and Gentlemen:
Thomas & Betts Corporation, a Tennessee corporation (the "Company",
which term shall refer to Thomas & Betts Corporation and its subsidiaries
considered as one enterprise, except where the context otherwise requires),
confirms its agreement with each of you, acting directly or through an affiliate
(each, an "Agent", and collectively, the "Agents"), with respect to the issue
and sale by the Company of its Medium-Term Notes Due Nine Months or More from
Date of Issue (the "Notes"). The Notes will be issued pursuant to the Indenture
dated as of August 1, 1998, as amended and supplemented by the Supplemental
Indenture No. 1 dated as of February 10, 1999, as further amended, modified and
supplemented from time to time, (collectively, the "Indenture"), between the
Company and The Bank of New York, as trustee (the "Trustee"). As of the date
hereof, the Company has authorized the issuance and sale of up to $150,000,000
aggregate principal amount of Notes through or to the Agents pursuant to the
terms of this Agreement. It is understood, however, that the Company may from
time to time authorize the issuance of additional Notes and that such additional
Notes may be sold through or to the Agents pursuant to the terms of this
Agreement, all as though the issuance of such Notes were authorized as of the
date hereof.
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This Agreement provides both for the sale of Notes by the Company
directly to purchasers, in which case the Agents will act as agents of the
Company in soliciting Note purchases, and (as may from time to time be agreed to
by the Company and one or more Agents) to such Agent(s) as principal for resale
to purchasers. Subject to the terms of this Agreement, the Company also reserves
the right to sell Notes directly to purchasers on its own behalf rather than
through or to the Agents.
The Company has filed with the Securities and Exchange Commission
(the "SEC") a registration statement on Form S-3 (No. 333-61465) on August 14,
1998 for the registration of debt securities, including the Notes, and common
stock, preferred stock and rights, 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 SEC under the 1933 Act (the "1933
Act Regulations"). Such registration statement has been declared effective by
the SEC and the Indenture has been qualified under the Trust Indenture Act of
1939, as amended (the "1939 Act"). Such registration statement and the
prospectus constituting a part thereof, as supplemented by any prospectus
supplement and pricing supplement relating to the Notes, including all documents
incorporated therein by reference, as from time to time amended or supplemented
by the filing of documents pursuant to the Securities Exchange Act of 1934, as
amended (the "1934 Act"), the 1933 Act or otherwise, are referred to herein as
the "Registration Statement" and the "Prospectus", respectively, except that if
any revised prospectus shall be provided to the Agents by the Company for use in
connection with the offering of the Notes which is not required to be filed by
the Company pursuant to Rule 424(b) of the 1933 Act Regulations, the term
"Prospectus" shall refer to such revised prospectus from and after the time it
is first provided to the Agents for such use.
If the Company has filed an abbreviated registration statement to register
additional Notes 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. APPOINTMENT AS AGENTS. (a) APPOINTMENT OF AGENTS. Subject
to the terms and conditions stated herein, the Company hereby appoints the
Agents as agents of the Company for the purpose of soliciting purchases of the
Notes from the Company by others and agrees that, except as otherwise
contemplated herein, whenever the Company determines to sell Notes directly to
one or more Agents as principal for resale to others, it will enter into a Terms
Agreement (as hereinafter defined) relating to such sale in accordance with the
provisions of Section 3(b) hereof. The Company from time to time may offer Notes
for sale otherwise than through the Agents, solicit offers to purchase Notes
through agents other than the Agents or accept offers to purchase Notes through
an agent other than the Agents, provided that (i) the Company and such agent
shall enter into an agreement with respect to such purchases that is
substantially similar to this Agreement, including the Schedules hereto, and
(ii) the Company shall provide the Agents with a copy of such agreement promptly
following the execution thereof. Without the Company's prior written consent,
the Agents are not authorized to appoint sub-agents or to engage the services of
any other broker or dealer in connection with the offer or sale of the Notes,
except that the Agents may utilize a selling or dealer group in connection with
the resale of any Notes purchased from the Company by them as principal for
resale to others.
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(b) REASONABLE BEST EFFORTS SOLICITATIONS; RIGHT TO REJECT
OFFERS. Upon receipt of instructions from the Company, each Agent will use
its reasonable best efforts to solicit purchases of such principal amount
of the Notes as the Company and the Agents shall agree upon from time to
time during the term of this Agreement, it being understood that the
Company shall not approve the solicitation of purchases of Notes in excess
of the amount which shall be authorized by the Company from time to time
or in excess of the aggregate principal amount of Notes registered
pursuant to the Registration Statement. The Agents will have no
responsibility for maintaining records with respect to the aggregate
principal amount of Notes sold or for monitoring the availability of Notes
for sale under the Registration Statement. Each Agent will communicate to
the Company, orally or in writing, each offer to purchase Notes received
by such Agent, other than those offers rejected by such Agent. Each Agent
shall have the right, in its discretion reasonably exercised, to reject
any proposed purchase of Notes, as a whole or in part, and any such
rejection shall not be deemed a breach of such Agent's agreement contained
herein. The Company may accept or reject any proposed purchase of the
Notes, in whole or in part.
(c) SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL. In
soliciting purchases of the Notes on behalf of the Company, each Agent
shall act solely as agent for the Company and not as principal. Each Agent
shall make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Notes has been
solicited by such Agent, as agent, and accepted by the Company. The Agents
shall not have any liability to the Company in the event any such purchase
is not consummated by a purchaser for any reason. The Agents shall not
have any obligation to purchase Notes from the Company as principal, but
an Agent may agree from time to time to purchase Notes as principal.
(d) RELIANCE. The Company and the Agents agree that any Notes
the placement of which an Agent arranges shall be placed by such Agent,
and any Notes purchased by an Agent shall be purchased, in reliance on the
representations, warranties, covenants and agreements of the Company
contained herein and on the terms and conditions and in the manner
provided herein.
SECTION 2. REPRESENTATIONS AND WARRANTIES. (a) The Company
represents and warrants to each Agent as of the date hereof, as of the date of
each acceptance by the Company of an offer for the purchase of Notes (whether
through such Agent as agent or to such Agent as principal), as of the date of
each delivery of Notes (whether through such Agent as agent or to such Agent as
principal) (the date of each such delivery to an Agent as principal being
hereafter referred to as a "Settlement Date"), and as of any time that the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for a change in the interest
rates of Notes or similar changes or that relates exclusively to an offering of
debt securities other than the Notes) (each of the times referenced above being
referred to herein as a "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 corporate power and
authority to own, lease and operate its
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properties and to conduct its business as described in the Prospectus; and
is duly qualified 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
financial condition, the earnings or business affairs of the Company and
its subsidiaries considered as one enterprise (a "Material Adverse
Effect").
(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 conduct
its business as described in the Prospectus; and is duly qualified 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; 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
Prospectus), is owned by the Company, directly or through one or more
subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, charge, claim or equity.
(iii) REGISTRATION STATEMENT AND PROSPECTUS. At the time the
Registration Statement became effective, the Registration Statement
complied, and as of the applicable Representation Date will comply, 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 SEC
promulgated thereunder (the "1939 Act Regulations"); the Registration
Statement, at the time it became effective, did not, and at each time
thereafter at which any amendment to the Registration Statement becomes
effective and as of the applicable Representation Date, 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; and the Prospectus, as of the date hereof does not, and as
of the applicable Representation Date will not, include 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
Company makes no representations or warranties as to statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Agent expressly for use in the
Registration Statement or the 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.
(iv) DESIGNATED INDENTURE. As of the date hereof, the Designated
Indenture (as hereinafter defined) complied or, as of each Representation
Date, will comply in all material respects with the requirements of the
1939 Act and the 1939 Act Regulations.
(v) INCORPORATED DOCUMENTS. The documents incorporated by reference
in the Prospectus, at the time they were or hereafter are filed with the
SEC, complied or when so filed will comply, as the case may be, in all
material respects with the requirements of
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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 include 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; PROVIDED, HOWEVER, that the Company makes no representations
or warranties as to statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by the
Agents expressly for use in the Registration Statement or the Prospectus.
(vi) ACCOUNTANTS. Each of the accountants who certified the
financial statements included or incorporated by reference in the
Prospectus is an independent public accountant as required by the 1933 Act
and the 1933 Act Regulations.
(vii) FINANCIAL STATEMENTS. The consolidated financial statements
included or incorporated by reference in the Prospectus 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, subject, in the
case of unaudited financial statements and the notes thereto, to normal
year-end adjustments, all prepared in conformity with generally accepted
accounting principles applied on a consistent basis (except as stated in
such financial statements) throughout the period(s) involved; and the
financial schedules included or incorporated by reference in the
Prospectus meet the requirements of the 1933 Act Regulations or the 1934
Act Regulations, as applicable.
(viii) AUTHORIZATION AND VALIDITY OF THIS AGREEMENT; THE
INDENTURE; AND THE NOTES. The execution and delivery of this Agreement
and the consummation of the transactions contemplated herein have been
duly authorized by the Company; the Indenture has been, and each
supplement thereto, if any, at such time and the supplement thereto or
officers' certificate setting forth the terms of the Notes (the
Indenture, as so supplemented by each such supplement or officers'
certificate, being herein referred to as the "Designated Indenture")
will have been, duly authorized by the Company; the Designated
Indenture, when duly executed and delivered by the Company and the
Trustee, will constitute a valid and legally binding agreement of the
Company, enforceable against the Company in accordance with its terms,
except to the extent that enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to or affecting enforcement of
creditors' rights generally or by general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law); the Notes have been duly and validly authorized for
issuance, offer and sale pursuant to this Agreement and, when executed,
authenticated and issued pursuant to the provisions of the Designated
Indenture and this Agreement against payment of the consideration
therefor, will constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms, except to the
extent that enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting enforcement of creditors'
rights generally or by general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law)
and
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except as enforcement thereof may be limited by (i) requirements that a
claim with respect to any Notes payable other than in U.S. dollars (or a
foreign currency or currency unit judgment in respect of such claim) be
converted into U.S. dollars at a rate or exchange prevailing on a date
determined pursuant to applicable law or (ii) governmental authority to
omit, delay or prohibit the making of payments outside the United States;
the Notes and the Designated Indenture will be substantially in the form
heretofore delivered to the Agents and conform in all material respects to
the descriptions thereof contained in the Prospectus; and the Notes will
be entitled to the benefits provided by the relevant Designated Indenture.
(ix) MATERIAL ADVERSE CHANGES OR MATERIAL TRANSACTIONS. From the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as may otherwise be stated therein or
contemplated thereby, the Company has not entered into any transactions
material to the Company and there has been no material adverse change in
the financial condition, the earnings or business affairs of the Company
and its subsidiaries considered as one enterprise (a "Material Adverse
Change") whether or not arising in the ordinary course of business.
(x) NO DEFAULTS; REGULATORY APPROVALS. Neither the Company nor any
of its Significant 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,
except for such defaults that would not have a Material Adverse Effect;
the execution and delivery of this Agreement and the Designated Indenture
and the consummation of the transactions contemplated herein, therein and
pursuant to any applicable Terms Agreement have been duly authorized by
all necessary corporate action 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 Significant Subsidiaries pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which the Company or any of its Significant Subsidiaries 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 Significant Subsidiary is subject,
except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a Material Adverse Effect, nor will such
action result in any violation of the provisions of the charter or by-laws
of the Company or any material violation of the provisions of the charter
or by-laws of any of the Company's Significant Subsidiaries or any law or
administrative regulation, or any administrative or court order or decree
currently in effect with respect to the Company or any Significant
Subsidiary.
(xi) LEGAL PROCEEDINGS. Except as set forth in the Prospectus, there
is no pending, or, to the best knowledge of any financial, legal or
executive officer of the Company, threatened action, suit or proceeding
before any court or governmental agency or body which individually (or in
the aggregate in the case of any group of related lawsuits) is expected to
have a Material Adverse Effect or adversely affect the ability of the
Company to perform its obligations under this Agreement or the Indenture.
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(xii) DESCRIPTION OF SECURITIES. The statements in the Prospectus
under the caption "Description of Securities", "Description of Notes" and
"United States Taxation", or any similar caption, insofar as they
summarize certain contracts, instruments or documents, fairly and
accurately present the information disclosed therein in all material
respects.
(xiii) NO AUTHORIZATION, APPROVAL OR CONSENT REQUIRED. No
authorization, approval or consent of any court or governmental
authority or agency is necessary for the consummation by the Company of
the transactions hereunder, except such as may be required under the
1933 Act, the 1939 Act, the 1933 Act Regulations or the 1939 Act
Regulations or the securities or "blue sky" laws of the various states
and any such authorizations, approvals or consents which the Agents are
required to obtain.
(xiv) PATENTS AND TRADEMARKS. The Company and each of its
subsidiaries each owns or possesses, or can acquire on reasonable terms,
adequate patents, patent licenses, trademarks, service marks and trade
names necessary to carry on their business as presently conducted, except
where the failure to own or possess the same would not have a Material
Adverse Effect.
(xv) ENVIRONMENTAL MATTERS. Except as disclosed in the Registration
Statement and the Prospectus, no notice, notification, demand, request for
information, citation, summons or order has been issued, no complaint has
been filed, no penalty has been assessed and no investigation or review is
pending, or, to the best knowledge of any financial, legal or executive
officer of the Company, is threatened by any governmental or other entity
with respect to any alleged violation by the Company or any of its
subsidiaries of any domestic law, ordinance, rule, regulation or order of
any governmental entity relating to pollution or protection of human
health, the environment (including, without limitation, ambient air,
surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations relating to
the release or threatened release of chemicals, pollutants, contaminants,
wastes, toxic substances, hazardous, substances, petroleum or petroleum
products (collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials in connection with the conduct of the
business of the Company or any of its subsidiaries, which violation, if
determined adversely would have a Material Adverse Effect; and to the best
knowledge of any financial, legal or executive officer of the Company, the
businesses of the Company and each of its subsidiaries are each being
operated, and each such business is, in compliance with all applicable
environmental laws, rules and regulations, except where the failure to
comply therewith would not have a Material Adverse Effect.
(b) ADDITIONAL CERTIFICATIONS. Any certificate signed by any officer
of the Company and delivered to the Agents or to counsel for the Agents in
connection with an offering of Notes or the sale of Notes to one or more Agents
as principal shall be deemed to be a representation and warranty by the Company
to the Agents as to the matters covered thereby on the date of such certificate
and, unless subsequently amended or supplemented, at each Representation Date
subsequent thereto.
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SECTION 3. SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL. (a)
SOLICITATIONS AS AGENT. On the basis of the representations and warranties
herein contained, but subject to the terms and conditions herein set forth, each
Agent agrees, as an agent of the Company, to use its reasonable best efforts to
solicit offers to purchase the Notes upon the terms and conditions set forth
herein and in the Prospectus.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through the Agents, as agents, commencing
at any time for any period of time or permanently. Upon receipt of instructions
from the Company by the Agents, the Agents will forthwith suspend solicitation
of purchases from the Company until such time as the Company has advised the
Agents that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, in the form of a
discount, equal to the applicable percentage of the principal amount of each
Note sold by the Company as a result of a solicitation made by such Agent as set
forth in Schedule A hereto. To the extent permitted by Section l(a) hereof, the
Agents may reallow all or any portion of the commission payable pursuant hereto
to dealers or purchasers in connection with the offer and sale of any Notes.
The purchase price, interest rate or formula, maturity date and
other terms of the Notes shall be agreed upon by the Company and the applicable
Agent and set forth in a pricing supplement to the Prospectus to be prepared
following each acceptance by the Company of an offer for the purchase of Notes.
Except as may be otherwise provided in such pricing supplement to the
Prospectus, the Notes will be issued in denominations of U.S. $1,000 or any
larger amount that is an integral multiple of U.S. $1,000. All Notes sold
through an Agent as agent will be sold at 100% of their principal amount unless
otherwise agreed to by the Company and such Agent.
(b) PURCHASES AS PRINCIPAL. Each sale of Notes to one or more Agents
as principal shall be made in accordance with the terms contained herein and
(unless the Company and such Agent(s) shall otherwise agree) pursuant to a
separate agreement which will provide for the sale of such Notes to, and the
purchase and reoffering thereof by such Agent(s). Each such separate agreement
(which may be an oral agreement, confirmed in writing as promptly as practicable
as described below if requested by the Company, between the applicable Agent(s)
and the Company) is herein referred to as a "Terms Agreement". Unless the
context otherwise requires, each reference contained herein to "this Agreement"
shall be deemed to include any applicable Terms Agreement between the Company
and the applicable Agent(s). Each such Terms Agreement, whether oral (and, if
requested by the Company, confirmed in writing as promptly as practicable, which
confirmation may be by facsimile transmission or otherwise) or in writing, shall
include such information (as applicable) as is specified in Schedule B hereto.
An Agent's commitment to purchase Notes as principal pursuant to any Terms
Agreement or otherwise shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and shall be
subject to the terms and conditions herein set forth. Each Terms Agreement shall
specify the principal amount of Notes to be purchased by the applicable Agent(s)
pursuant thereto, the price to be paid to the Company for such Notes (which, if
not so specified in a Terms Agreement, shall be at a discount equivalent to the
applicable commission set forth in Schedule A hereto), the time and place of
delivery of and payment for
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such Notes, any default provisions with respect to Notes to be purchased by more
than one Agent and such other provisions (including further terms of the Notes)
as may be mutually agreed upon. An Agent may utilize a selling or dealer group
in connection with the resale of the Notes purchased and may offer all or any
portion of the discount received from the Company to such selling or dealer
group. Such Terms Agreement shall also specify the requirements for any
officers' certificate, opinions of counsel and "comfort" letters pursuant to
(and consistent with) Sections 7(b), 7(c) and 7(d) hereof.
(c) ADMINISTRATIVE PROCEDURES. The Agents and the Company agree to
perform, and the Company agrees to cause the Trustee to agree to perform, the
respective duties and obligations specifically provided to be performed by them
in the Medium-Term Note Administrative Procedures (attached hereto as Exhibit A)
(the "Procedures"), as may hereafter be amended from time to time. The
Procedures may be amended only by written agreement between the Company and the
Agents.
SECTION 4. COVENANTS OF THE COMPANY. The Company covenants with the
Agents as follows:
(a) NOTICE OF CERTAIN EVENTS. The Company will notify the Agents
promptly of (i) the effectiveness of any amendment to the Registration
Statement, (ii) the transmittal to the SEC for filing of any supplement to
the Prospectus or any document that would as a result thereof be
incorporated by reference in the Prospectus (other than a supplement
relating to the offering of debt securities other than the Notes), (iii)
the receipt of any comments from the SEC with respect to the Registration
Statement or the Prospectus, (iv) any request by the SEC for any amendment
to the Registration Statement or any supplement to the Prospectus or for
additional information relating thereto, (v) the issuance by the SEC of
any stop order suspending the effectiveness of the Registration Statement,
and (vi) any withdrawal or lowering by Standard & Poor's Ratings Group or
Moody's Investors Service, Inc. of its rating of any debt securities
(including the Notes) of the Company or the public announcement by any
such rating agency that it has under surveillance or review, with possible
negative implications, its rating of any such debt securities. Except as
otherwise provided in subsection (k) of this Section, the Company will use
its reasonable best efforts to prevent the issuance of any such stop order
and, if any such order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b) NOTICE OF CERTAIN PROPOSED FILINGS. Except as otherwise provided
in subsection (k) of this Section, the Company will give the Agents notice
of its intention to file or prepare any amendment to the Registration
Statement or any amendment or supplement to the Prospectus (other than an
amendment or supplement providing solely for a change in the interest
rates of Notes or an amendment or supplement relating to an offering of
debt securities other than the Notes), whether by the filing of documents
pursuant to the 1934 Act, the 1933 Act or otherwise, and will furnish the
Agents with copies of any such amendment or supplement or other documents
proposed to be filed or used a reasonable time in advance of such proposed
filing or use, as the case may be; PROVIDED that the requirements of this
paragraph shall not apply to the Company's proxy statement, its Annual
Report on Form 10-K, its Quarterly Reports on Form 10-Q or its
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Current Reports on Form 8-K, so long as the Company shall furnish the
Agents with copies of such documents, upon request, after the date of
filing thereof with the SEC.
(c) COPIES OF THE REGISTRATION STATEMENT AND THE PROSPECTUS. The
Company will deliver to each Agent as many signed and conformed copies of
the Registration Statement (as originally filed) and of all amendments
thereto, whether filed before or after the Registration Statement becomes
effective, copies of all exhibits and documents filed therewith or
incorporated by reference therein as such Agent may reasonably request;
and the Company will furnish to each Agent as many copies of the
Prospectus (as amended or supplemented) as such Agent shall reasonably
request so long as such Agent is required to deliver a Prospectus in
connection with sales or solicitations of offers to purchase the Notes.
(d) PREPARATION OF PRICING SUPPLEMENTS. The Company will prepare,
with respect to any Notes to be sold through or to an Agent pursuant to
this Agreement, a pricing supplement to the Prospectus with respect to
such Notes in a form previously approved by the Agents and will file such
pricing supplement pursuant to Rule 424(b)(3) under the 1933 Act not later
than the close of business of the SEC on the fifth business day after the
date on which such pricing supplement is first used.
(e) REVISIONS OF PROSPECTUS -- MATERIAL CHANGES. Except as otherwise
provided in subsection (k) of this Section, if at any time during the term
of this Agreement any event shall occur or condition exist as a result of
which it is necessary, in the reasonable opinion of counsel for the Agents
or counsel for the Company, to 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 the Prospectus is delivered to a purchaser, or if it
shall be necessary, in the reasonable opinion of either such counsel, to
amend the Registration Statement or to amend or supplement the Prospectus
in order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, immediate notice shall be given to the Agents to cease the
solicitation of offers to purchase the Notes in their capacity as agents
and to cease sales of any Notes an Agent may then own as principal
pursuant to a Terms Agreement, and the Company will promptly prepare and
file, subject to Section 4(b) hereof, with the SEC 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) PROSPECTUS REVISIONS -- PERIODIC FINANCIAL INFORMATION. Except
as otherwise provided in subsection (k) of this Section, on the date of,
but not prior to, the release to the general public of interim financial
statement information related to the Company with respect to each of the
first three quarters of any fiscal year or preliminary financial statement
information with respect to any fiscal year, the Company shall furnish
such information to the Agents, confirmed in writing, and shall, subject
to Section 4(b) hereof and promptly following any such release, cause the
Prospectus to be amended or supplemented to include or incorporate by
reference financial information with respect
<PAGE>
thereto and corresponding information for the comparable period of the
preceding fiscal year, as well as such other information and explanations
as shall be necessary for an understanding thereof or as shall be required
by the 1933 Act or the 1933 Act Regulations.
(g) PROSPECTUS REVISIONS -- AUDITED FINANCIAL INFORMATION. Except as
otherwise provided in subsection (k) of this Section, on the date of, but
not prior to, the release to the general public of financial information
included in or derived from the audited financial statements of the
Company for the preceding fiscal year, the Company shall furnish such
information to the Agents, confirmed in writing, and shall, subject to
Section 4(b) hereof and promptly following any such release, cause the
Registration Statement and the Prospectus to be amended, whether by the
filing of documents pursuant to the 1934 Act, the 1933 Act or otherwise,
to include or incorporate by reference such audited financial statements
and the report or reports, and consent or consents to such inclusion or
incorporation by reference, of the independent accountants with respect
thereto, as well as such other information and explanations as shall be
necessary for an understanding of such financial statements or as shall be
required by the 1933 Act or the 1933 Act Regulations.
(h) 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 of the 1933 Act Regulations) 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 Notes.
(i) 1934 ACT FILINGS. During the period when the Prospectus is
required by the 1933 Act to be delivered in connection with sales of the
Notes, the Company will, subject to Section 4(b) hereof, file promptly all
documents required to be filed with the SEC pursuant to Section 13, 14 or
15(d) of the 1934 Act.
(j) STAND-OFF AGREEMENT. Except as may otherwise be provided in a
Terms Agreement, between the date of any Terms Agreement and the
Settlement Date with respect to such Terms Agreement, the Company will
not, without the prior written consent of the applicable Agent(s), offer
or sell, or enter into any agreement to sell, any debt securities issued
or guaranteed by the Company with comparable terms in any public offering
(other than the Notes that are to be sold pursuant to such Terms
Agreement, commercial paper in the ordinary course of business and
tax-exempt securities).
(k) SUSPENSION OF CERTAIN OBLIGATIONS. The Company shall not be
required to comply with the provisions of the last sentence of subsection
(a) of this Section or with the provisions of subsection (b), (e), (f) or
(g) of this Section during any period from the time (i) the Agents shall
have suspended solicitation of purchases of the Notes in their capacity as
agents pursuant to a request from the Company and (ii) none of the Agents
shall then hold any Notes as principal purchased pursuant to a Terms
Agreement (or, if an Agent holds Notes as principal pursuant to a Terms
Agreement, such Agent has held such
<PAGE>
Notes for more than 180 days), to the time the Company shall determine
that solicitation of purchases of the Notes should be resumed or shall
subsequently enter into a new Terms Agreement with such Agent.
SECTION 5. CONDITIONS OF OBLIGATIONS. The obligations of the Agents
to solicit offers to purchase the Notes as agents of the Company, the
obligations of any purchasers of the Notes sold through an Agent as agent, and
any obligation of an Agent to purchase Notes pursuant to a Terms Agreement or
otherwise will be subject to the accuracy of the representations and warranties
of the Company contained herein and to the accuracy of the statements of the
officers of the Company made in any certificate furnished pursuant to the
provisions hereof, to the performance and observance by the Company of all of
its covenants and agreements herein contained and to the following further
conditions precedent.
(a) LEGAL OPINIONS. On the date hereof, the Agents shall have
received the following legal opinions, dated as of the date hereof, in form and
substance reasonably satisfactory to the Agents:
(1) OPINION OF THE GENERAL COUNSEL OF THE COMPANY. The opinion of
the General Counsel of the Company, or other counsel reasonably
satisfactory to the Agents, substantially in the form attached hereto as
Exhibit B.
(2) OPINION OF SPECIAL COUNSEL TO THE COMPANY. The opinion of Davis
Polk & Wardwell, special counsel for the Company, as to matters of New
York law and the federal laws of the United States, to the effect that:
(i) Assuming the due authorization, execution and delivery of
the Designated Indenture by the Company and the Trustee, the
Designated Indenture constitutes a valid and legally binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except (i) to the extent that enforcement
thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting enforcement of
creditors' rights generally, (ii) as enforcement thereof is subject
to general principles of equity (regardless of whether enforcement
is considered in a proceeding in equity or at law) and (iii) to
governmental authority that limits, delays or prohibits the making
of payments in foreign currency or currency units or payments
outside the United States, and except that the waiver set forth in
Section 515 of the Indenture may be deemed unenforceable.
(ii) Assuming the due authorization, execution and delivery of
the Notes, the Notes, when authenticated and delivered pursuant to
the provisions of the Designated Indenture and this Agreement
against payment of the consideration therefor, will constitute valid
and legally binding obligations of the Company entitled to the
benefits of the Designated Indenture and will be enforceable against
the Company in accordance with their terms, except (i) to the extent
that enforcement thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar
laws now or
<PAGE>
hereafter in effect relating to or affecting enforcement of
creditors' rights generally, (ii) as enforcement thereof is subject
to general principles of equity (regardless of whether enforcement
is considered in a proceeding in equity or at law) and (iii) to
governmental authority that limits, delays or prohibits the making
of payments in foreign currency or currency units or payments
outside the United States.
(iii) The Designated Indenture has been duly qualified under
the 1939 Act.
(iv) The Notes and the Designated Indenture conform in all
material respects as to legal matters to the descriptions thereof
contained in the Prospectus.
(v) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the
issuance, sale, delivery and performance of the Notes hereunder or
for the execution, delivery or performance of the Designated
Indenture by the Company, except such as may be required under the
1933 Act, the 1939 Act, the 1933 Act Regulations or the 1939 Act
Regulations or the securities or "blue sky" laws of the various
states.
(vi) The statements made in the Prospectus under the caption
"Description of Securities", "Description of Notes", and "United
States Taxation", to the extent that they constitute matters of law
or legal conclusions or summarize certain contracts, instruments or
documents, fairly and accurately present the information disclosed
therein in all material respects.
(vii) Based solely on written advice addressed to the Company
by the Commission, the Registration Statement has become effective
under the 1933 Act. To the best knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement is
in effect and no proceedings for that purpose have been instituted
or are pending or threatened under the 1933 Act.
(viii) Such counsel has participated in the preparation of the
Registration Statement and the Prospectus and has generally reviewed
and discussed with certain officers and employees of the Company,
the Company's independent public accountants and representatives of
the Agents the information furnished therein, but such counsel has
not conducted any independent check or verification of the accuracy
or completeness of such information (except as otherwise stated). On
the basis of such consideration, review and discussion, (A) such
counsel believes each part of the Registration Statement (including
the documents incorporated by reference therein) (except for the
financial statements and related schedules and other financial data
contained therein and the Trustee's Statement of Eligibility on Form
T-1, as to which such counsel need express no belief) filed with the
Commission pursuant to the 1933 Act relating to the Notes, when such
part became effective, did 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
<PAGE>
statements therein not misleading, (B) such counsel is of the
opinion the Registration Statement and the Prospectus (except for
the documents incorporated by reference therein and the financial
statements and related schedules and other financial data included
therein and the Trustee's Statement of Eligibility on Form T-1, as
to which such counsel need express no opinion) comply as to form in
all material respects with the requirements of the 1933 Act and the
1939 Act and (C) such counsel believes the Registration Statement
and the Prospectus (except for the financial statements and related
schedules and other financial data included therein and the
Trustee's Statement of Eligibility on Form T-1, as to which such
counsel need express no belief), on the date of this Agreement, on
the date of any Terms Agreement or at the Settlement Date with
respect thereto, does not or did not, as the case may be, contain
any 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.
In giving such opinion, such counsel may state in rendering their
opinion set forth in paragraphs (i) and (ii) above that, as of the date of
such opinion, a judgment for money in an action based on Notes payable in
foreign or composite currencies in a federal or state court in the United
States ordinarily would be enforced in the United States only in United
States dollars and that the date used to determine the rate of conversion
of the foreign or composite currency in which a particular Note is payable
into United States dollars will depend on various factors, including which
court renders the judgment. In giving such opinion, such counsel may
indicate that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of
the Company and the Significant Subsidiaries and certificates of public
officials. Except as otherwise required in accordance with Section 7(c)
hereof, such counsel may also state that the opinions given do not address
any application of the Commodity Exchange Act, as amended, or the rules,
regulations or interpretations of the Commodity Futures Trading Commission
to Notes the payments of principal or interest on which will be determined
by reference to one or more currency exchange rates, commodity prices,
equity indices or other items.
(3) OPINION OF COUNSEL TO THE AGENTS. The opinion of Brown & Wood
LLP, counsel to the Agents, as to matters of New York law and the federal
law of the United States, covering the matters referred to in
subparagraphs (a)(2)(i) to (iv) and (a)(2)(vi) (except with respect to
"United States Taxation") to (viii) of this Section 5.
(b) OFFICERS' CERTIFICATE. On the date hereof, the Agents shall have
received a certificate of the Chief Executive Officer, the President or any Vice
President and the Vice President-Finance, the Treasurer or the Vice
President-General Counsel of the Company, dated as of the date hereof, to the
effect that (i) since the respective dates as of which information is given in
the Registration Statement and the Prospectus, other than as set forth or
incorporated by reference therein, there has not been any Material Adverse
Change, (ii) the representations and warranties of the Company contained in
Section 2 hereof 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
<PAGE>
will be true and correct on and as of such later date, as the case may be),
(iii) the Company has complied with all agreements and satisfied all conditions
set forth herein and in any applicable Terms Agreement on its part to be
performed or satisfied at or prior to the date of such certificate, and (iv)
that no stop order suspending the effectiveness of the Registration Statement is
in effect and no proceedings for that purpose have been initiated or, to the
best of such officers' knowledge, threatened by the SEC.
(c) COMFORT LETTERS. On the date hereof, the Agents shall have
received a "comfort" letter of KPMG LLP or successor accounting firm of national
standing (as well as a "comfort letter" of each applicable accountant covering
financial statements of any entity other than the Company which are included or
incorporated by reference in the Registration Statement and the Prospectus),
dated as of the date hereof and in form and substance satisfactory to the
Agents, to the effect that:
(i) They are independent public accountants with respect to the
Company (or such other entity, as the case may be) and its subsidiaries
within the meaning of the 1933 Act and the applicable published 1933 Act
Regulations.
(ii) In their opinion, the consolidated financial statements of the
Company (or such other entity, as the case may be) and the related
financial statement schedules audited by them and included or incorporated
by reference in the Registration Statement and the Prospectus comply as to
form in all material respects with the applicable accounting requirements
of the 1933 Act and the 1934 Act and the related published rules and
regulations thereunder;
(iii) On the basis of procedures (but not an audit in accordance
with generally accepted auditing standards) consisting of a reading of the
latest available unaudited interim consolidated financial statements of
the Company included or incorporated by reference in the Registration
Statement and the Prospectus, a reading of the minutes of all meetings of
the shareholders, board of directors and committees of the board of
directors of the Company since the date of the latest audited consolidated
financial statements of the Company included or incorporated by reference
in the Registration Statement and the Prospectus, inquiries of certain
officials of the Company responsible for financial and accounting matters,
any limited review in accordance with standards established by the
American Institute of Certified Public Accountants with respect to the
latest unaudited consolidated financial statements included or
incorporated by reference in the Registration Statement and the Prospectus
performed at the request of the Company and such other inquiries and
procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) any material modifications should be made to the latest
unaudited consolidated financial statements included or incorporated
by reference in the Registration Statement and the Prospectus for
them to be in conformity with generally accepted accounting
principles;
(B) the latest unaudited financial statements included or
incorporated by reference in the Registration Statement and the
Prospectus do not comply in form
<PAGE>
in all material respects with the applicable accounting requirements
of the 1933 Act and the 1934 Act and the related published rules and
regulations thereunder;
(C) at a specified date not more than five days prior to the
date of such letter, there was any change in the capital stock or
any increase in the long-term debt of the Company and consolidated
subsidiaries or any decreases in consolidated net current assets or
net assets, in each case as compared with amounts shown in the
latest balance sheet included or incorporated by reference in the
Registration Statement and the Prospectus, except in each case for
changes, decreases or increases that the Registration Statement and
the Prospectus disclose have occurred or may occur; or
(D) for the period from the date of the latest unaudited
consolidated financial statements included or incorporated by
reference in the Registration Statement and the Prospectus to a
specified date not more than five days prior to the date of such
letter, there was any decrease in consolidated net sales, earnings
from operations or in the total or per-share amounts of net
earnings, in each case as compared with the corresponding period in
the preceding year, except in each case for any decreases that the
Registration Statement and the Prospectus disclose have occurred or
may occur.
(iv) Although they are unable to and do not express any opinion on
any Pro Forma Condensed Balance Sheet or the Pro Forma Condensed Statement
of Operations (the "Pro Forma Statements") included or incorporated by
reference in the Registration Statement and the Prospectus or on the pro
forma adjustments applied to the historical amounts included in the Pro
Forma Statements, for purposes of such letter they have:
(a) read the Pro Forma Statements;
(b) made inquiries of certain officials of the Company who
have responsibility for financial and accounting matters about the
basis for their determination of the pro forma adjustments and
whether the Pro Forma Statements comply in form in all material
respects with the applicable accounting requirements of Rule 11-02
of Regulation S-X; and
(c) proved the arithmetic accuracy of the application of the
pro forma adjustments to the historical amounts in the Pro Forma
Statements; and
on the basis of such procedures, and such other inquiries and procedures
as may be specified in such letter, nothing came to their attention that
caused them to believe that the Pro Forma Statements included or
incorporated by reference in the Registration Statement and the Prospectus
do not comply in form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X and that the pro
forma adjustments have not been properly applied to the historical amounts
in the compilation of those statements; and
(v) They have performed other specified procedures, not constituting
an audit, with respect to certain amounts, percentages, numerical data and
financial information
<PAGE>
included or incorporated by reference in the Registration Statement, which
have previously been specified by you and which shall be specified in such
letter, and have compared certain of such items with, and have found such
items to be in agreement with, the accounting and financial records of the
Company.
(d) RATINGS. The Notes shall have been rated BBB and Baa2 by
Standard & Poor's Ratings Services and Moody's Investors Service, Inc.
respectively, or such other ratings as the Company shall have notified the
Agents of pursuant to Section 4(a) hereof and written confirmation of such
ratings, dated each Settlement Date shall have been delivered to the Agents.
(e) OTHER DOCUMENTS. On the date hereof and on each Settlement Date
with respect to any applicable Terms Agreement, counsel to the Agents 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 Notes 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
Notes as herein contemplated shall be reasonably satisfactory in form and
substance to the Agents and to counsel to the Agents.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement (or, at the
option of the applicable Agent, any applicable Terms Agreement) may be
terminated by an Agent by notice to the Company at any time and any such
termination shall be without liability of any party to any other party, except
that the covenant regarding provision of an earnings statement set forth in
Section 4(h) hereof, the provisions concerning payment of expenses under Section
10 hereof, the indemnity and contribution agreement set forth in Sections 8 and
9 hereof, the provisions concerning the representations, warranties and
agreements to survive delivery of Section 11 hereof, the governing law
provisions set forth in Section 14 hereof and the provisions set forth under
"Parties" of Section 15 hereof shall remain in effect.
SECTION 6. DELIVERY OF AND PAYMENT FOR NOTES SOLD THROUGH THE
AGENTS. Delivery of Notes sold through an Agent as agent shall be made by the
Company to such Agent or its nominee for the account of any purchaser only
against payment therefor in immediately available funds. In the event that a
purchaser shall fail either to accept delivery of or to make payment for a Note
on the date fixed for settlement, the applicable Agent shall promptly notify the
Company and deliver such Note to the Company, and, if such Agent has theretofore
paid the Company for such Note, the Company will promptly return such funds to
such Agent. If such failure occurred for any reason other than default by such
Agent in the performance of its obligations hereunder, the Company will
reimburse such Agent on an equitable basis for its loss of the use of the funds
for the period such funds were credited to the Company's account.
SECTION 7. ADDITIONAL COVENANTS OF THE COMPANY. The Company
covenants and agrees with the Agents that:
(a) REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each acceptance
by it of an offer for the purchase of Notes (whether through an Agent as
agent or to an Agent
<PAGE>
as principal), and each delivery of Notes by the Company (whether through
an Agent as agent or to an Agent as principal), shall be deemed to be an
affirmation that the representations and warranties of the Company
contained in this Agreement and in any certificate theretofore delivered
to the Agents pursuant hereto are true and correct at the time of such
acceptance or sale, as the case may be, and an undertaking that such
representations and warranties will be true and correct at the time of
delivery to the purchaser or his or her agent, or to the Agents, of the
Note or Notes relating to such acceptance or sale, as the case may be, as
though made at and as of each such time (it being understood that such
representations and warranties shall relate to the Registration Statement
and Prospectus as amended and supplemented to each such time).
(b) SUBSEQUENT DELIVERY OF CERTIFICATES. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented
(other than by an amendment or supplement providing solely for a change in
the interest rates of Notes or similar changes, and, unless the Agents
shall otherwise reasonably specify, other than by an amendment or
supplement that relates exclusively to an offering of debt securities
other than the Notes), (ii) there is filed with the SEC any document
incorporated by reference into the Prospectus (other than any proxy
statement or Current Report on Form 8-K relating exclusively to the
issuance of debt securities other than the Notes or, unless the Agents
shall otherwise reasonably specify, any other Report on Form 8-K), (iii)
(if required pursuant to the terms of a Terms Agreement) the Company sells
Notes to one or more Agents pursuant to a Terms Agreement or (iv) the
Company shall approve a form of Note for sale whose principal, premium, if
any, or interest is determined by reference to any index, formula or other
method (collectively, "Indexed Notes"), the Company shall furnish or cause
to be furnished to the Agents forthwith a certificate dated the date of
filing with the SEC of such supplement or document, the date of
effectiveness of such amendment, or the date of such sale, as the case may
be, in form satisfactory to the Agents, to the effect that the statements
contained in the certificate referred to in Section 5(b) hereof which were
last furnished to the Agents are true and correct at the time of such
amendment, supplement, filing or sale, as the case may be, as though made
at and as of such time (except that such statements shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such time and provided that, if such certificate is
provided on the date of sale pursuant to a Terms Agreement, such
certificate shall, in lieu of the statement required in Section 5(b)(i)
hereof, state that since the date of the applicable Terms Agreement there
has not been any Material Adverse Change) or, in lieu of such certificate,
a certificate of the same tenor as the certificate referred to in said
Section 5(b), modified as necessary to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of
delivery of such certificate; PROVIDED, HOWEVER, that, if the Agents shall
have suspended solicitation of purchases of the Notes in their capacity as
agents pursuant to a request from the Company, and none of the Agents
shall then hold any Notes as principal purchased pursuant to a Terms
Agreement (or if any Agent holds Notes as principal pursuant to a Terms
Agreement, such Agent has held such Notes for more than 180 days), the
Company shall not be obligated so to furnish the Agents with a certificate
or certificates until such time that the Company shall determine that
solicitation of purchases of the Notes should be resumed or shall
subsequently enter into a new Terms Agreement with one or more Agents.
<PAGE>
(c) SUBSEQUENT DELIVERY OF LEGAL OPINIONS. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented
(other than by an amendment or supplement providing solely for a change in
the interest rates of the Notes or similar changes or solely for the
inclusion of additional financial information, and, unless the Agents
shall otherwise reasonably specify, other than by an amendment or
supplement that relates exclusively to an offering of debt securities
other than the Notes), (ii) there is filed with the SEC any document
incorporated by reference into the Prospectus (other than any proxy
statement or Current Report on Form 8-K relating exclusively to the
issuance of debt securities other than the Notes or to quarterly or annual
financial information that has been announced to the general public or,
unless the Agents shall otherwise reasonably request, any other Current
Report on Form 8-K or any Quarterly Report on Form 10-Q), (iii) (if
required pursuant to the terms of a Terms Agreement) the Company sells
Notes to one or more Agents pursuant to a Terms Agreement or (iv) the
Company shall approve a form of Indexed Note for sale, the Company shall
furnish or cause to be furnished forthwith to the Agents and to counsel to
the Agents a written opinion of counsel reasonably satisfactory to the
Agents, dated the date of filing with the SEC of such supplement or
document, the date of effectiveness of such amendment, or the date of such
sale, as the case may be, in form and substance satisfactory to the
Agents, of the same tenor as the opinions referred to in Sections 5(a)(1)
and (2) hereof, but modified, as necessary, to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of
delivery of such opinion or, in lieu of any such opinion, counsel last
furnishing such opinion to the Agents shall furnish the Agents with a
letter to the effect that the Agents may rely on such last opinion to the
same extent as though it was dated the date of such letter authorizing
reliance (except that statements in such last opinion shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such letter authorizing reliance);
PROVIDED, HOWEVER, that, in the event that an Indexed Note has been
approved for sale by the Company, counsel to the Company shall also
confirm the exclusion or exemption of such Indexed Note from the Commodity
Exchange Act and the rules and regulations promulgated thereunder; and
PROVIDED, FURTHER, that, if the Agents shall have suspended solicitation
of purchases of the Notes in their capacity as agents pursuant to a
request from the Company, and none of the Agents shall then hold any Notes
as principal purchased pursuant to a Terms Agreement (or, if any Agent
holds Notes as principal pursuant to a Terms Agreement, such Agent has
held such Notes for more than 180 days), the Company shall not be
obligated so to furnish the Agents with opinions until such time that the
Company shall determine that solicitation of purchases of the Notes should
be resumed or shall subsequently enter into a new Terms Agreement with one
or more Agents.
(d) SUBSEQUENT DELIVERY OF COMFORT LETTERS. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented
to include additional financial information, (ii) there is filed with the
SEC any document incorporated by reference into the Prospectus that
contains additional financial information (other than any Current Report
on Form 8-K relating to quarterly or annual earnings) or (iii) (if
required pursuant to the terms of a Terms Agreement) the Company sells
Notes to one or more Agents pursuant to a Terms Agreement, the Company
shall cause KPMG LLP (as well as any other accountant referred to in
Section 5(c) for so long
<PAGE>
as their consent to the inclusion of their report on the related financial
statements is required) forthwith to furnish the Agents with a letter,
dated the date of effectiveness of such amendment, supplement or document
with the SEC or the date of such sale, as the case may be, in form
satisfactory to the Agents, of the same tenor as the portions of its
letter referred to in Section 5(c)(i) and (ii) hereof but modified to
relate to the Registration Statement and Prospectus, as amended and
supplemented to the date of such letter, and of the same general tenor as
the portions of its letter referred to in Section 5(c)(iii) and (iv)
hereof with such changes as may be necessary to reflect changes in the
financial statements and other information derived from the accounting
records of the Company; PROVIDED, HOWEVER, that, if the Registration
Statement or the Prospectus is amended or supplemented solely to include
financial information as of and for a fiscal quarter, KPMG LLP (as well as
any other accountant referred to in Section 5(c) for so long as their
consent to the inclusion of their report on the related financial
statements is required) may limit the scope of its letter to the unaudited
financial statements included in such amendment or supplement, unless any
other information included therein of an accounting, financial or
statistical nature is of such a nature that, in the reasonable judgment of
the Agents, such letter should cover such other information; and PROVIDED,
FURTHER, that, if the Agents shall have suspended solicitation of
purchases of the Notes in their capacity as agents pursuant to a request
from the Company, and none of the Agents shall then hold any Notes as
principal purchased pursuant to a Terms Agreement (or, if any Agent holds
Notes as principal pursuant to a Terms Agreement, such Agent has held such
Notes for more than 180 days), the Company shall not be obligated so to
furnish the Agents with a letter or letters until such time that the
Company shall determine that solicitation of purchases of the Notes should
be resumed or shall subsequently enter into a new Terms Agreement with one
or more Agents.
SECTION 8. INDEMNIFICATION. (a) The Company agrees to indemnify and
hold harmless the Agents and each person, if any, who controls an Agent within
the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of an untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of an untrue
statement or alleged untrue statement of a material fact included in any
preliminary prospectus, preliminary prospectus supplement or the
Prospectus (or any amendment or supplement thereto) or the omission or
alleged 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, as incurred, 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 based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
<PAGE>
(iii) against any and all expense whatsoever, as incurred (including
the reasonable fees and disbursements of counsel chosen by the Agents,
subject to subsection (c) of this Section 8), 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 based upon any such untrue
statement or omission, or any such alleged untrue statement or omission,
to the extent that any such expense is not paid under subparagraph (i) or
(ii) above;
PROVIDED, HOWEVER, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by the Agents
expressly for use in the Registration Statement (or any amendment thereto) or
any preliminary prospectus, preliminary prospectus supplement or the Prospectus
(or any amendment or supplement thereto) or in the Form T-1 or any amendment or
supplement thereto filed by the Trustee with the Commission; PROVIDED, FURTHER
that the foregoing indemnification with respect to any preliminary prospectus or
preliminary prospectus supplement shall not apply to any loss, liability, claim,
damage or expense asserted against an Agent by a person who purchased the Notes
(whether from such Agent as agent or from such Agent as principal) and is
asserting such loss, liability, claim, damage or expense, if a copy of the
Prospectus (as then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto to such Agent a reasonable amount of time
prior to their delivery) was not sent or given by or on behalf of such Agent to
such person, if such is required by law, at or prior to the written confirmation
of the sale of such Notes to such person and if the Prospectus (as so amended or
supplemented) would have cured the untrue statement or omission or alleged
untrue statement or omission giving rise to such loss, liability, claim, damage
or expense.
(b) INDEMNIFICATION OF COMPANY. Each Agent agrees to indemnify and
hold harmless the Company, its directors, each of its officers who signed the
Registration Statement, 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, and to the same extent as, in the indemnity
contained in Section 8(a), as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any preliminary prospectus,
preliminary prospectus supplement or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by such Agent expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus, preliminary
prospectus supplement or the Prospectus (or any amendment or supplement
thereto).
(c) GENERAL. 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 it from any liability which it may have otherwise than
on account of this indemnity agreement. Upon receipt of notice of such action
from the indemnified party, the indemnifying party may assume the defense of any
such action, including the employment of counsel reasonably satisfactory to the
indemnified party and the payment of all expenses related thereto. In the event
that the indemnifying party assumes the defense of such action as provided in
the foregoing sentence,
<PAGE>
each indemnified party shall have the right to employ separate counsel in any
such action and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (a) the
indemnifying party has separately agreed in writing to pay such fees and
expenses or (b) the indemnifying party shall have failed to assume the defense
of such action or proceeding and employ counsel reasonably satisfactory to such
person in any such action or proceeding or (c) the named parties to any such
action or proceeding (including any impleaded parties) include both such
indemnified party and the indemnifying party, and such indemnified party shall
have been advised by their own counsel that there are potential material
conflicts of interest between such indemnified party and the indemnifying party,
in which case if such person notifies the indemnifying party in writing that
such indemnified party elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right to assume
the defense of such action or proceeding on behalf of such indemnified party. In
no event shall the indemnifying party or parties be liable for the fees and
expenses of more than one 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. An
indemnified party under subsection (a) or (b) above shall not enter into a
settlement of any litigation in respect of which a claim is to be made against
the indemnifying party under such subsection unless such settlement is effected
with the consent of the indemnifying party.
(d) PAYMENTS. If at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated by subparagraph (a)(ii) of this
Section 8 effected without its written consent if (i) such settlement is entered
into more than 45 days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall have received notice of the terms of
such settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified party
in accordance with such request prior to the date of such settlement.
SECTION 9. CONTRIBUTION. If the indemnification provided for in
Section 8 hereof, although applicable in accordance with its terms, is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
applicable Agent(s) on the other hand from the offering of the Notes that were
the subject of the claim for indemnification or (ii) if the allocation provided
by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and each such
Agent on the other hand in connection with the statements or omissions which
resulted in such losses, liabilities, claims, damages or expenses, as well as
any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and
the applicable Agent(s) on the other hand in connection with the offering of the
Notes that were the subject of the claim for indemnification shall be deemed to
be in the same respective proportions as the
<PAGE>
total net proceeds from the sale of such Notes (before deducting expenses)
received by the Company and the total discount or commission received by each
such Agent, as the case may be, bears to the aggregate initial offering price of
such Notes.
The relative fault of the Company on the one hand and the applicable
Agent(s) on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the applicable Agent(s) and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Agents agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by pro rata
allocation (even if the applicable Agent(s) were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 9. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 9 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 9, (i) no Agent shall
be required to contribute any amount in excess of the amount by which the total
price at which the relevant Notes sold by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Agent has
otherwise been required to pay by reason of any such untrue or alleged untrue
statement or omission or alleged omission and (ii) 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. In addition, in connection with an offering
of Notes purchased by two or more Agents as principal, the respective
obligations of such Agents to contribute pursuant to this Section 9 are several,
and not joint, in proportion to the aggregate initial offering price of Notes
that each such Agent has agreed to purchase from the Company.
For purposes of this Section 9, each person, if any, who controls an
Agent within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act shall have the same rights to contribution as such Agent, and each director
of the Company, each officer of the Company and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Company.
SECTION 10. PAYMENT OF EXPENSES. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including:
(a) The preparation and filing of the Registration Statement and all
amendments thereto and the Prospectus and any amendments or supplements
thereto;
<PAGE>
(b) The printing, filing and reproduction of this Agreement;
(c) The preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the use of global Notes;
(d) The fees and disbursements of the Company's accountants and
counsel, of the Trustee and its counsel, and of any calculation agent or
exchange rate agent;
(e) The reasonable fees and disbursements of counsel to the Agents
incurred from time to time in connection with the transactions
contemplated hereby;
(f) The printing and delivery to the Agents 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 Agents of the Prospectus and any
amendments or supplements thereto in connection with solicitations or
confirmations of sales of the Notes;
(g) The preparation, printing, reproducing and delivery to the
Agents of copies of the Designated Indenture and all supplements and
amendments thereto;
(h) Any fees charged by rating agencies for the rating of the Notes;
(i) The fees and expenses, if any, incurred in connection with any
listing of the Notes on any securities exchange;
(j) The filing fees, if any, incurred with respect to any filing
with the National Association of Securities Dealers, Inc.;
(k) Any advertising and other out-of-pocket expenses of the Agents
incurred with the written approval of the Company;
(l) The cost of preparing, and providing any CUSIP or other
identification numbers for, the Notes; and
(m) The fees and expenses of any Depositary (as defined in the
Indenture) and any nominees thereof in connection with the Notes.
SECTION 11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. The representations, warranties, indemnities, agreements and other
statements of the Company and the indemnities, agreements and other statements
of an Agent set forth in or made pursuant to this Agreement will remain
operative and in full force and effect regardless of any investigation made by
or on behalf of the Company or an Agent or controlling person and shall survive
each delivery of and payment for the Notes.
SECTION 12. TERMINATION. (a) TERMINATION OF THIS AGREEMENT. This
Agreement (excluding any Terms Agreement) may be terminated for any reason, at
any time by either the Company or an Agent (as to itself) upon the giving of 21
days' written notice of such termination to the other party hereto.
<PAGE>
(b) TERMINATION OF A TERMS AGREEMENT. The applicable Agent(s) may
terminate any Terms Agreement, immediately upon notice to the Company, at any
time prior to the Settlement Date relating thereto (i) if there has been, since
the date of such Terms Agreement, any Material Adverse Change which, in any such
case, in the judgment of such Agent(s), makes it impractical to market the
related Notes or (ii) if there has occurred any outbreak of new hostilities or
escalation of existing hostilities or other national or international calamity
or crisis the effect of which on the financial markets of the United States is
such as to make it, in the judgment of such Agent(s), impracticable to market
the related Notes or enforce contracts for the sale of such Notes or (iii) if
trading in any securities of the Company has been suspended by the SEC or any
exchange on which such securities are listed, or if trading generally on the New
York Stock Exchange or in a national over-the-counter market has been suspended,
or minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by such exchange or by order of the
SEC, any exchange on which such securities are listed or any other governmental
authority or (iv) if a banking moratorium has been declared by either federal or
New York authorities or if a banking moratorium shall have been declared by the
relevant authorities in the country or countries of origin of any foreign
currency or currencies in which the related Notes are denominated or payable or
(v) if the rating assigned by Moody's Investors Service, Inc. or Standard &
Poor's Ratings Group to any debt securities (including the Notes) of the Company
as of the date of any applicable Terms Agreement shall have been lowered since
that date or if any such rating agency shall have publicly announced that it has
under surveillance or review, with possible negative implications, its rating of
any such debt securities, or (vi) if there shall have come to the attention of
such Agent(s) any facts that would cause such Agent(s) to reasonably believe
that the Prospectus, at the time it was required to be delivered to a purchaser
of the related Notes, included an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements therein, in
light of the circumstances existing at the time of such delivery, not
misleading.
(c) GENERAL. In the event of any such termination, neither party
will have any liability to the other party hereto, except that (i) each Agent
shall be entitled to any commission earned prior to such termination in
accordance with the third paragraph of Section 3(a) hereof, (ii) if at the time
of termination (A) an Agent shall own any Notes purchased pursuant to a Terms
Agreement with the intention of reselling them or (B) an offer to purchase any
of the Notes has been accepted by the Company but the time of delivery to the
purchaser or his agent of the Note or Notes relating thereto has not occurred,
the covenants set forth in Sections 4 and 7 hereof shall remain in effect until
such Notes are so resold or delivered, as the case may be, and (iii) the
covenant set forth in Section 4(h) hereof, the provisions of Section 5 hereof,
the indemnity and contribution agreements set forth in Sections 8 and 9 hereof,
and the provisions of Sections 11, 14 and 15 hereof shall remain in effect.
SECTION 13. NOTICES. Unless otherwise provided herein, all notices
required under the terms and provisions hereof shall be in writing, either
delivered by hand, by mail or by telex, telecopier or telegram, and any such
notice shall be effective when received at the address specified below.
<PAGE>
If to the Company:
Thomas & Betts Corporation
8155 T&B Boulevard
Memphis, Tennessee 38125
Attention: Vice President, General Counsel and Secretary
If to the Agents:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower - 10th Floor
World Financial Center
New York, New York 10281
Attention: MTN Product Management
J.P. Morgan Securities Inc.
60 Wall Street - 3rd Floor
New York, New York 10005
Attention: Medium-Term Note Desk
Lehman Brothers Inc.
3 World Financial Center
New York, New York 10285
Attention: Medium-Term Note Desk
Morgan Stanley & Co. Incorporated
1585 Broadway - 2nd Floor
New York, New York 10036
Attention: Manager-Continuously Offered Products
with a copy to:
Morgan Stanley & Co. Incorporated
1585 Broadway - 34th Floor
New York, New York 10036
Attention: Peter Cooper-Investment Banking
Information Center
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
SECTION 14. GOVERNING LAW. This Agreement and all the rights and
obligations of the parties shall be governed by and construed in accordance with
the laws of the State of New York.
<PAGE>
SECTION 15. PARTIES. This Agreement shall inure to the benefit of
and be binding upon the Agents and the Company 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 8 and 9 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 and 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 Notes shall be deemed to be successor by reason merely of such
purchase.
SECTION 16. COUNTERPARTS. This Agreement may be executed in one or
more counterparts and when a counterpart has been executed by each party, all
such counterparts taken together shall constitute one and the same agreement.
SECTION 17. HEADINGS. All headings of the sections and subparts
thereof of this Agreement are for convenience of reference only and shall not be
deemed a part of this Agreement or the applicable Agreement.
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us counterparts hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
the Agents and the Company in accordance with its terms.
Very truly yours,
THOMAS & BETTS CORPORATION
By: /s/ Fred R. Jones
---------------------------------
Name: Fred R. Jones
Title: Vice Prsident-Chief Financial Officer
Confirmed and accepted as of the
date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
----------------------------------
Name:
Title:
J.P. MORGAN SECURITIES INC.
By: /s/ Robert W. McMinn, Jr.
----------------------------------
Name: Robert W. McMinn, Jr.
Title: Vice President
LEHMAN BROTHERS INC.
By: /s/ James W. Merli
----------------------------------
Name: James W. Merli
Title: Managing Director
MORGAN STANLEY & CO. INCORPORATED
By: /s/ Michael Fusco
----------------------------------
Name: Michael Fusco
Title: Vice President
<PAGE>
Exhibit 3
BYLAWS
OF
THOMAS & BETTS CORPORATION
As Adopted by the Board of Directors on March 11, 1996
and
Amended and Restated on September 3, 1997
and
Amended and Restated February 3, 1999
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE 1 MEETINGS OF SHAREHOLDERS.............................................................................1
Section 1. ANNUAL MEETING..................................................................................1
Section 2. SPECIAL MEETINGS................................................................................1
Section 3. PLACE OF MEETINGS...............................................................................1
Section 4. NOTICE OF MEETINGS..............................................................................1
Section 5. QUORUM; ADJOURNMENT.............................................................................1
Section 6. ORGANIZATION....................................................................................2
Section 7. VOTING..........................................................................................2
Section 8. SHAREHOLDER LISTS...............................................................................2
Section 9. NOTICE OF BUSINESS AND NOMINATIONS..............................................................2
A. ANNUAL MEETINGS OF SHAREHOLDERS......................................................................2
B. SPECIAL MEETINGS OF SHAREHOLDERS.....................................................................4
C. GENERAL..............................................................................................4
Section 10. INSPECTORS OF ELECTIONS.........................................................................5
ARTICLE 2 BOARD OF DIRECTORS...................................................................................5
Section 1. GENERAL POWERS..................................................................................5
Section 2. NUMBER, ELECTION AND TERM OF OFFICE.............................................................5
Section 3. MEETINGS........................................................................................5
Section 4. PLACE OF MEETING................................................................................6
Section 5. NOTICE OF MEETINGS..............................................................................6
Section 6. QUORUM AND MANNER OF ACTING.....................................................................6
Section 7. ORGANIZATION....................................................................................6
Section 8. RESIGNATIONS....................................................................................6
Section 9. REMOVAL OF DIRECTORS............................................................................6
Section 10. VACANCIES.......................................................................................7
Section 11. COMPENSATION....................................................................................7
Section 12. INCREASING NUMBER OF DIRECTORS..................................................................7
ARTICLE 3 EXECUTIVE AND OTHER COMMITTEES.......................................................................7
Section 1. EXECUTIVE COMMITTEE, GENERAL POWERS AND MEMBERSHIP..............................................7
Section 2. PROCEDURE.......................................................................................8
Section 3. OTHER COMMITTEES................................................................................8
ARTICLE 4 OFFICERS.............................................................................................8
Section 1. ELECTION, TERM OF OFFICE AND QUALIFICATIONS.....................................................8
Section 2. REMOVAL.........................................................................................8
Section 3. RESIGNATIONS....................................................................................8
Section 4. VACANCIES.......................................................................................9
Section 5. CHAIRMAN OF THE BOARD OF DIRECTORS..............................................................9
Section 6. PRESIDENT.......................................................................................9
Section 7. CHIEF EXECUTIVE OFFICER.........................................................................9
Section 8. SECRETARY AND ASSISTANT SECRETARY...............................................................9
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
Section 9. TREASURER......................................................................................10
ARTICLE 5 INDEMNIFICATION OF OFFICERS AND DIRECTORS...........................................................10
Section 1. RIGHT TO INDEMNIFICATION.......................................................................10
Section 2. RIGHT OF CLAIMANT TO BRING SUIT................................................................11
Section 3. NON-EXCLUSIVITY OF RIGHTS; CONTINUATION OF RIGHTS..............................................11
Section 4. INSURANCE......................................................................................11
ARTICLE 6 EXECUTION OF INSTRUMENTS, ETC.......................................................................12
Section 1. CONTRACTS, ETC., HOW EXECUTED..................................................................12
Section 2. DEPOSITS.......................................................................................12
Section 3. CHECKS, DRAFTS, ETC............................................................................12
ARTICLE 7 SHARES AND THEIR TRANSFER; SHAREHOLDER RECORDS......................................................12
Section 1. CERTIFICATES OF STOCK..........................................................................12
Section 2. TRANSFER OF SHARES.............................................................................13
Section 3. CLOSING OF TRANSFER BOOKS; RECORD DATE.........................................................13
Section 4. LOST AND DESTROYED CERTIFICATES................................................................13
Section 5. REGULATIONS....................................................................................13
ARTICLE 8 NOTICE..............................................................................................14
Section 1. WAIVER OF NOTICE...............................................................................14
ARTICLE 9 MISCELLANEOUS.......................................................................................14
Section 1. FISCAL YEAR....................................................................................14
Section 2. SEAL...........................................................................................14
ARTICLE 10 AMENDMENTS.........................................................................................14
Section 1..................................................................................................14
</TABLE>
ii
<PAGE>
BYLAWS
ARTICLE 1
MEETINGS OF SHAREHOLDERS
Section 1. ANNUAL MEETING. The annual meeting of shareholders
for the election of directors and for the transaction of such other business as
may properly come before said meeting shall be held on a day during the period
from April 15 to May 15, or on any other day, and at a time determined by the
Board of Directors.
Section 2. SPECIAL MEETINGS. Except as otherwise required by
law, a special meeting of shareholders may be called at any time by the Chairman
of the Board of Directors if he or she is an officer of the Corporation 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 (the
"Whole Board") and by no other person or persons.
Section 3. PLACE OF MEETINGS. All meetings of shareholders shall
be held at the principal office of the Corporation in the State of Tennessee, or
at other places in or outside of such State as may be designated by the Board of
Directors and specified in the notice of meeting.
Section 4. NOTICE OF MEETINGS. Notice of each meeting stating
the purpose or purposes for which the meeting is called and the time when and
the place where it is to be held, shall be served upon each shareholder of
record entitled to vote at such meeting, either personally or by mailing such
notice to him or her or by such other manner as may be permitted by the
Tennessee Business Corporations Act, not less than 10 days nor more than two
months before the time fixed for such meeting. If mailed, it shall be directed
to a shareholder at his or her address as it appears on the shareholder list.
Any previously scheduled meeting of the shareholders may be postponed by
resolution of the Board of Directors upon public notice given prior to the date
previously scheduled for such meeting of shareholders.
Section 5. QUORUM; ADJOURNMENT. Except as otherwise provided by
law or by the Charter, at each meeting of shareholders, the holders of record of
a majority of the total number of the shares of capital stock entitled to vote
must be present in person or by proxy to constitute a quorum for the transaction
of business. Whether or not there is a quorum at any meeting, the shareholders
present and entitled to cast a majority of the votes thereat or the Chairman of
the meeting may adjourn and readjourn the meeting from time to time. At any such
adjourned meeting at which a quorum is present, any business may be transacted
which might have been transacted at the meeting as originally called.
1
<PAGE>
Section 6. ORGANIZATION. At every meeting of the shareholders,
the Chairman of the Board of Directors, or, in his or her absence, the
President, or, in his or her absence, a Vice President designated by the
President or, in the absence of such designation, a chairman designated by the
Board of Directors, shall act as Chairman. The Secretary or the Assistant
Secretary or such officer of the Corporation designated by the chairman shall
act as secretary of each meeting of the shareholders.
Section 7. VOTING. Each shareholder of record present shall be
entitled at each meeting of shareholders to such number of votes as shall be
prescribed by the Charter for the shares of capital stock recorded in his or her
name in the shareholder records of the Corporation:
(a) at the record date fixed as provided in Section 3
of Article 7, or
(b) if no such record date shall have been fixed, then
at the close of business on the eleventh day
before the day of such meeting.
The voting at any meeting of shareholders need not be by
ballot, unless specifically required by law or requested by a qualified voter
present in person or by proxy.
Except to the extent permitted under the Tennessee Business
Corporation Act, shares of the Corporation's capital stock shall not be entitled
to vote if such shares are owned, directly or indirectly, by another corporation
of which the Corporation owns, directly or indirectly, a majority of the shares
entitled to vote for directors of such corporation. Notwithstanding, the
foregoing shall not limit the power of the Corporation to vote any shares,
including its own shares, held by it in a fiduciary capacity.
Section 8. SHAREHOLDER LISTS. The Transfer Agent or the
Secretary, or such other officer as may be designated by the Board of Directors,
shall make a full, true and complete list, in alphabetical order, of all
shareholders entitled to vote at each annual or special meeting of shareholders,
and the address and the number of shares of capital stock held by each. The
Board of Directors shall produce such list at the time and place of the meeting,
to remain there during the meeting. Such list shall be the only evidence as to
who are the shareholders entitled to vote at the meeting.
Section 9. NOTICE OF BUSINESS AND NOMINATIONS.
A. ANNUAL MEETINGS OF SHAREHOLDERS.
[1] Nominations of persons for election to the Board
of Directors of the Corporation and any proposal of business to be
considered by the shareholders may be made at an annual meeting of
shareholders only (a) pursuant to the Corporation's notice of meeting,
(b) by or at the direction of the Board of
2
<PAGE>
Directors or (c) by any shareholder of the Corporation who was a
shareholder of record at the time of giving of notice provided for in
this Section, who is entitled to vote at the meeting and who complied
with the notice procedures set forth in this Section.
[2] For nominations or other business to be properly
brought before an annual meeting by a shareholder pursuant to clause
(c) of paragraph (A) (1) of this Section, the shareholder must have
given timely notice thereof in writing to the Secretary of the
Corporation. To be timely, a shareholder's notice shall be delivered to
the Secretary at the principal executive offices of the Corporation not
less than 120 days prior to the first anniversary of the preceding
year's annual meeting; provided, however, that in the event that the
date of the annual meeting is advanced by more than 30 days or delayed
by more than 60 days from such anniversary date, notice by the
shareholder to be timely must be so delivered not later than the close
of business on the later of the 120th day prior to such annual meeting
or the 10th day following the day on which public announcement of the
date of such meeting is first made.
Such shareholder's notice shall set forth (a) as to each
person whom the shareholder proposes to nominate for election or
reelection as a director all information relating to such person that
is required to be disclosed in solicitations of proxies for election of
directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended
(the "Exchange Act") (including such person's written consent to being
named in the proxy statement as a nominee and to serving as a director
if elected); (b) as to any other business that the shareholder proposes
to bring before the meeting, a brief description of the business
desired to be brought before the meeting, the reasons for conducting
such business at the meeting and any material interest in such business
of such shareholder and the beneficial owner, if any, on whose behalf
the proposal is made; and (c) as to the shareholder giving the notice
and the beneficial owner, if any, on whose behalf the nomination or
proposal is made (i) the name and address of such shareholder, as such
name and address appear in the Corporation's shareholder records, and
of such beneficial owner and (ii) the class and number of shares of the
Corporation which are owned beneficially and of record by such
shareholder and such beneficial owner.
[3] Notwithstanding anything in the second sentence
of paragraph (A) (2) of this Section to the contrary, in the event that
the number of directors to be elected to the Board of Directors of the
Corporation is increased and there is no public announcement naming all
of the nominees for director or specifying the size of the increased
Board of Directors made by the Corporation at least 120 days prior to
the first anniversary of the preceding year's annual meeting, a
shareholder's notice required by this Section shall also be considered
timely, but only with respect to nominees for any new positions created
by such increase, if it shall be delivered
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to the Secretary at the principal executive offices of the Corporation
not later than the close of business on the 10th day following the day
on which such public announcement is first made by the Corporation.
B. SPECIAL MEETINGS OF SHAREHOLDERS. Only such business
shall be conducted at a special meeting of shareholders as shall have been
brought before the meeting pursuant to the notice of meeting. Nominations of
persons for election to the Board of Directors may be made at a special meeting
of shareholders at which directors are to be elected pursuant to the notice of
meeting (a) by or at the direction of the Board of Directors or (b) by any
shareholder of the Corporation who is a shareholder of record at the time of
giving of notice provided for in this Section, who shall be entitled to vote at
the meeting and who complies with the notice procedures set forth in this
Section. Nominations by shareholders of persons for election to the Board of
Directors may be made at such a special meeting of shareholders if the
shareholder's notice required by paragraph (A) (2) of this Section shall be
delivered to the Secretary at the principal executive offices of the Corporation
not earlier than the 90th day prior to such special meeting and not later than
the close of business on the later of the 60th day prior to such special meeting
or the 10th day following the day on which public announcement is first made of
the date of the special meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting.
C. GENERAL.
[1] Only such persons who are nominated in accordance
with the procedures set forth in this Section shall be eligible to serve as
directors and only such business shall be conducted at a meeting of shareholders
as shall have been brought before the meeting in accordance with the procedures
set forth in this Section. Except as otherwise provided by law, the Chairman of
the meeting shall have the power and duty to determine whether a nomination or
any business proposed to be brought before the meeting was made in accordance
with the procedures set forth in this Section and, if any proposed nomination or
business is not in compliance with this Section, to declare that such defective
proposal or nomination shall be disregarded.
[2] For purposes of this Section, "public
announcement" shall mean disclosure in a press release reported by the
Dow Jones News Service, Associated Press or comparable national news
service or in a document publicly filed by the Corporation with the
Securities and Exchange Commission pursuant to Section 13, 14 or 15 (d)
of the Exchange Act.
[3] Notwithstanding the foregoing provisions of this
Section, a shareholder shall also comply with all applicable
requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this Section.
Nothing in this Section shall be deemed to affect any rights of
shareholders
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to request inclusion of proposals in the Corporation's proxy statement
pursuant to Rule 14a-8 under the Exchange Act.
Section 10. INSPECTORS OF ELECTIONS; OPENING AND CLOSING THE
POLLS. The Board of Directors by resolution shall appoint one or more
inspectors, which inspector or inspectors may include individuals who serve the
Corporation in other capacities, including, without limitation, as officers,
employees, agents or representatives of the Corporation, to act at the meeting
and make a written report thereof. One or more persons may be designated as
alternate inspectors to replace any inspector who fails to act. If no inspector
or alternate has been appointed to act or is able to act at a meeting of
shareholders, the chairman of the meeting shall appoint one or more inspectors
to act at the meeting. Each inspector, before discharging his or her duties,
shall take and sign an oath or affirmation faithfully to execute the duties of
inspector with strict impartiality and according to the best of his or her
ability.
ARTICLE 2
BOARD OF DIRECTORS
Section 1. GENERAL POWERS. The business of the Corporation,
except as otherwise expressly provided by law or by the Charter, shall be
managed by the Board of Directors.
Section 2. NUMBER, ELECTION AND TERM OF OFFICE. A Board of
Directors of not less than seven nor more than fifteen members as may be
determined by the Board of Directors at a meeting held prior to the annual
meeting shall be elected at the annual meeting of shareholders. The number of
directors to be elected shall be stated in the notice of the meeting. Subject to
such limitation, the persons receiving the greatest number of votes shall be the
directors and they shall hold office until the next annual meeting and until
their successors shall have been elected and qualified, or until death,
resignation, disqualification or removal. Each director shall within one month's
time of his or her election and so long as he or she shall continue to be a
director, be a bona fide holder of at least one share of the Common Stock of the
Corporation.
Section 3. MEETINGS. The Board of Directors shall hold regular
meetings on such days and at such hours as may be fixed by the Board of
Directors from time to time, except that a regular meeting shall be held as soon
as practicable after the adjournment of the annual meeting of the shareholders
at which such Board of Directors shall have been elected, for the purpose of
organization, the election of officers and the transaction of such other
business as may properly come before the meeting.
Special meetings shall be held whenever called by the Chairman
of the Board of Directors or by the President or any two directors.
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Section 4. PLACE OF MEETING. Meetings of the Board of Directors
shall be held at the principal office of the Corporation or at such other place
as the Board of Directors may from time to time determine.
Section 5. NOTICE OF MEETINGS. Notice need not be given for
regular Board of Directors meetings, the dates, times, and places of which have
been fixed by the Board of Directors in advance for the calendar year. Notice of
a special meeting or of a change in the date, time, or place of holding a
regular Board of Directors meeting shall be communicated (i) in writing to each
director at the director's residence or usual place of business, or at such
other address as the director may have designated in a written request filed
with the Secretary, at least two days before the day on which the meeting is to
be held, or (ii) orally, in person or by telephone, at least 24 hours before the
time at which the meeting is to be held. Notice of any meeting of the Board of
Directors may be waived in writing by any director either before or after the
time of such meeting; and at any meeting at which every director shall be
present, even though without any notice, any business may be transacted.
Section 6. QUORUM AND MANNER OF ACTING. A majority of the total
number of directors shall be present in person or by telephone at any meeting of
the Board of Directors in order to constitute a quorum for the transaction of
business thereat. Whether or not there is a quorum at any meeting, a majority of
the directors who are present may adjourn and readjourn any meeting from time to
time to a day and hour certain.
Section 7. ORGANIZATION. At every meeting of the Board of
Directors, the Chairman of the Board of Directors, or, in his or her absence,
the President, or, in his or her absence, a chairman chosen by a majority of the
directors present, shall preside. The Secretary of the Corporation shall act as
secretary of the meetings of the Board of Directors. At any meeting of the Board
of Directors, in the absence of the Secretary, the chairman of such meeting
shall appoint a person to act as secretary of the meeting.
Section 8. RESIGNATIONS. Any director may resign at any time by
giving written notice to the Chairman of the Board of Directors or to the
President or to the Secretary of the Corporation or to the Board of Directors.
Such resignation shall take effect at the time specified therein and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
Section 9. REMOVAL OF DIRECTORS. 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.
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Section 10. VACANCIES. 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.
Section 11. COMPENSATION. The Board of Directors, by the
affirmative vote of a majority of directors in office and irrespective of any
personal interest of any of them, shall have the authority to establish
reasonable compensation, including reimbursement of expenses, of directors for
services to the Corporation as directors, officers or otherwise. Nothing herein
contained shall be construed to preclude any director from serving in any other
capacity or receiving compensation for such service.
Section 12. INCREASING NUMBER OF DIRECTORS. The Board of
Directors shall have power at any time when the shareholders as such are not
assembled in a meeting, regular or special, to increase the number of directors
elected by the shareholders and forthwith to fill such position or positions by
the election of one or more directors, to hold office until the next annual
meeting of shareholders, and until his, her or their successor or successors are
elected and qualified.
ARTICLE 3
EXECUTIVE AND OTHER COMMITTEES
Section 1. EXECUTIVE COMMITTEE, GENERAL POWERS AND MEMBERSHIP.
From time to time, the Board of Directors may, by a majority of the Whole Board,
appoint from its members an Executive Committee consisting of at least three
members of the Board of Directors, a majority of whom shall not be employees of
the Corporation, and the Committee shall meet at the call of the Chairman, or,
in the absence of the Chairman, at the call of any member of such committee, to
act for the Board of Directors, to the extent permitted by law, in any situation
in which action of the Board of Directors is required and it is not practicable
to have a meeting of the Board of Directors. The Executive Committee shall have
and may exercise all the powers of the Board of Directors except the power to
authorize or approve distributions or reacquisition of shares, except according
to a formula or method prescribed by the Board of Directors, the power to
appoint or remove a member of the Executive Committee or other committee, the
power to fill vacancies in the Board of Directors, the power to remove an
officer appointed by the Board of Directors, the power to amend or repeal these
Bylaws and the power to authorize or approve the issuance or sale or contract
for sale of shares, or to determine the designation and relative rights,
preferences, and limitations of a class or series of shares, except as
authorized by the Board of Directors within limits specifically prescribed by
the Board of Directors. All actions of the Executive Committee shall be reported
to the Board of Directors at its meeting next succeeding such action and,
insofar as the rights of third parties shall not be affected thereby, shall be
subject to revision and alteration by the Board of Directors.
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All members of the Board of Directors not appointed to the
Executive Committee may be authorized by appropriate action of the Board of
Directors to attend the meetings of the Executive Committee as observers but
without any right to vote at such meetings and shall be entitled to receive such
fees as shall be fixed by the Board of Directors.
Section 2. PROCEDURE. The Executive Committee shall fix its own
rules of procedure and shall meet where and as provided by such rules or by
resolution of the Board of Directors. The presence in person or by telephone of
a majority shall be necessary to constitute a quorum and in every case the
affirmative vote of a majority of all members of the committee shall be
necessary.
Section 3. OTHER COMMITTEES. From time to time, the Board of
Directors, by resolution adopted by a majority vote of the Whole Board, may
appoint any other committee or committees for any purpose or purposes with such
powers as shall be specified in the resolution of appointment and permitted by
law.
ARTICLE 4
OFFICERS
Section 1. ELECTION, TERM OF OFFICE AND QUALIFICATIONS. The
Board of Directors shall elect a President, a Secretary and a Treasurer and it
may elect a Chairman of the Board of Directors, who may or may not be designated
an officer of the Corporation, one or more Vice Presidents and such other
officers as it may deem necessary from time to time, with such authority and
such duties as may be prescribed by the Board of Directors from time to time.
Subject to the provisions of Section 2 and Section 3 of this Article each
elected officer shall hold office until the next annual election and until his
or her successor is chosen and qualified. Divisional officers, who shall not be
officers of the Corporation, may be appointed by the Chief Executive Officer to
perform such duties as may be assigned from time to time by the Chief Executive
Officer.
The same person, whether an officer of the Corporation or a
divisional officer, may hold more than one office, so far as permitted by law,
except the offices of president and secretary, and exercise and perform the
powers and duties thereof.
Section 2. REMOVAL. Any officer may be removed, either with or
without cause, at any time, by resolution adopted by a majority of the Whole
Board, at any meeting of the Board of Directors, or by any committee or officer
upon whom such power of removal shall have been conferred by resolution adopted
by a majority of the Whole Board.
Section 3. RESIGNATIONS. Any officer may resign at any time by
giving written notice to the Chairman of the Board of Directors if he or she is
an officer of the Corporation or to the President or to the Secretary or to the
Board of Directors. Any such resignation
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shall take effect at the time specified therein and, unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
Section 4. VACANCIES. A vacancy in any office arising from any
cause may be filled for the unexpired portion of the term in the manner
prescribed in these Bylaws for election to such elective office.
Section 5. CHAIRMAN OF THE BOARD OF DIRECTORS. The Chairman of
the Board of Directors shall preside at all shareholders' meetings and meetings
of the Board of Directors. He or she shall perform such additional duties and
possess such additional powers as from time to time shall be prescribed for him
or her by the Board of Directors.
Section 6. PRESIDENT. The President shall perform such duties
and possess such powers as from time to time shall be prescribed for him or her
by the Board of Directors. In the absence of the Chairman of the Board of
Directors he or she shall perform the duties and possess the powers of the
Chairman of the Board of Directors.
Section 7. CHIEF EXECUTIVE OFFICER. The Board of Directors may
from time to time designate either the Chairman of the Board of Directors or the
President as the Chief Executive Officer of the Corporation to be in general
charge of the business of the Corporation in all its departments. This shall
require the affirmative vote of a majority of the Whole Board given at any
meeting.
Section 8. SECRETARY AND ASSISTANT SECRETARY.
The Secretary shall:
A. keep the minutes of all meetings of the shareholders
and of the Board of Directors, and of any committee of the Board of Directors to
which a secretary shall not have been appointed, in books to be kept for the
purpose;
B. see that all notices are duly given in accordance
with these Bylaws or as required by law;
C. be custodian of the records (other than financial)
and have charge of the seal of the Corporation and see that it is used upon all
papers or documents whose execution on behalf of the Corporation under its seal
is required by law or duly authorized in accordance with these Bylaws; and
D. in general, perform all duties incident to the office
of the Secretary, and such other duties as from time to time may be assigned by
the Board of Directors or by the Chairman of the Board of Directors if he or she
is an officer of the Corporation or by the President or by any committee
thereunto authorized.
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The Assistant Secretary shall, in the absence of the
Secretary, perform the duties and exercise the powers of the Secretary and shall
perform such other duties as from time to time may be assigned by the Board of
Directors or by the Chairman of the Board of Directors if he or she is an
officer of the Corporation or by the President or by any committee thereunto
authorized.
Section 9. TREASURER. The Treasurer shall:
A. have charge and custody of, and be responsible for,
all funds and securities of the Corporation; and
B. in general, perform all the duties incident to the
office of Treasurer, and such other duties as from time to time may be assigned
by the Board of Directors or by the Chairman of the Board of Directors if he or
she is an officer of the Corporation or by the President or by any committee
thereunto authorized.
ARTICLE 5
INDEMNIFICATION OF OFFICERS AND DIRECTORS
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 be
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 or
officer and shall inure to the benefit of his or her heirs, executors and
administrators; provided, however, that the Corporation shall indemnify any 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
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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-EXCLUSIVITY 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,
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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.
ARTICLE 6
EXECUTION OF INSTRUMENTS, ETC.
Section 1. CONTRACTS, ETC., HOW EXECUTED. All contracts and
other corporate instruments shall be executed in the name of and in behalf of
the Corporation and delivered by the Chairman of the Board of Directors if he or
she is an officer of the Corporation, the President, the President of a division
of the Corporation, any Vice President or the Treasurer and may be attested by
the Secretary, Assistant Secretary or the Vice President-General Counsel unless
the Board of Directors shall specifically direct otherwise.
Section 2. DEPOSITS. Funds of the Corporation may be deposited
from time to time to the credit of the Corporation with such depositaries as may
be selected by the Board of Directors or by any committee or officer or
officers, agent or agents of the Corporation to whom such power may be delegated
from time to time by the Board of Directors.
Section 3. CHECKS, DRAFTS, ETC. All checks, drafts or other
orders for the payment of money, notes, acceptances, or other evidences of
indebtedness issued in the name of the Corporation shall be signed by the Vice
President-Chief Financial Officer or the Treasurer or such agent or agents of
the Corporation as shall be designated from time to time by the Vice
President-Chief Financial Officer or the Treasurer. Unless otherwise provided by
resolution of the Board of Directors, endorsements for deposit to the credit of
the Corporation in any of its duly authorized depositaries may be made without
counter signature, by the President or any Vice President, or the Treasurer, or
by any other officer or agent of the Corporation to whom such power shall have
been delegated by the Vice President-Chief Financial Officer or Treasurer and
may be made by hand-stamped impression in the name of the Corporation.
ARTICLE 7
SHARES AND THEIR TRANSFER; SHAREHOLDER RECORDS
Section 1. CERTIFICATES OF STOCK. The stock of the Corporation
shall be represented by certificates signed by the Chairman of the Board of
Directors if he or she is an officer of the Corporation or by the President and
the Secretary or an Assistant Secretary or the Treasurer or an Assistant
Treasurer, and sealed with the seal of the Corporation. Such seal may be a
facsimile, engraved or printed. Where any such
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certificate is signed by a Transfer Agent or Assistant Transfer Agent or by a
Transfer Clerk and by a Registrar, the signatures of the Chairman of the Board
of Directors, President, Secretary, Assistant Secretary, Treasurer or Assistant
Treasurer and of the Transfer Agent, Assistant Transfer Agent, Transfer Clerk
and Registrar upon such certificate may be facsimiles, engraved or printed.
Section 2. TRANSFER OF SHARES. Transfers of shares of the
capital stock of the Corporation shall be recorded in the shareholder records of
the Corporation when duly assigned by the holder of record of such shares or by
his or her attorney thereunto duly authorized, and on surrender of the
certificate or certificates, for such shares or pursuant to the abandoned
property laws of any state of the United States if the shareholder's share
interest shall be properly within the jurisdiction of the state and has been
deemed abandoned and subject to custodial retention under the laws of such
state.
Section 3. CLOSING OF TRANSFER BOOKS; RECORD DATE. The Board of
Directors may close the stock transfer books for a period not exceeding 60 days
preceding the date of any meeting of shareholders or the date for payment of any
dividend, or the date for the allotment of rights, or the date when any change
or conversion or exchange of capital stock shall go into effect; provided,
however, in lieu of closing the stock transfer books, as aforesaid the Board of
Directors may at its discretion fix in advance a date, not exceeding 60 days
preceding the date of any meeting of shareholders, or the date for the payment
of any dividend, or the date for the allotment of rights, or the date when any
change or conversion or exchange of capital stock shall go into effect, as a
record date for the determination of the shareholders entitled to notice of, and
to vote at, any such meeting, or entitled to receive payment of any such
dividend, or any such allotment of rights, or to exercise the rights in respect
to any such change, conversion or exchange of capital stock, and all persons who
are holders of record at such time of the class of stock involved, and no
others, shall be entitled to such notice of, and to vote at, such meeting, or to
receive payment of such dividend, or allotment of rights or exercise of such
rights, as the case may be.
Section 4. LOST AND DESTROYED CERTIFICATES. The holder of record
of any certificate of stock who shall claim that such certificate is lost or
destroyed may make an affidavit or affirmation of that fact and advertise the
same in such manner as the Board of Directors, the Transfer Agent or the
Registrar may require and give a bond, if required to do so, in the form and in
such sum as the Board of Directors, the Transfer Agent or the Registrar may
direct, sufficient to indemnify the Corporation, the Transfer Agent and the
Registrar against any claim that may be made on account of such certificate,
whereupon one or more new certificates may be issued of the same tenor and for
the same aggregate number of shares as the one alleged to be lost or destroyed.
Section 5. REGULATIONS. The Board of Directors may make such
rules and regulations as it may deem expedient concerning the issuance, transfer
and registration
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of certificates of stock; it may appoint one or more transfer agents or
registrars of transfers or both, and may require all certificates of stock to
bear the signature of either or both.
ARTICLE 8
NOTICE
Section 1. WAIVER OF NOTICE. No notice of the time, place or
purpose of any meeting of shareholders or directors, or of any committee, or any
publication thereof, whether prescribed by law, by the Charter or by these
Bylaws, need be given to any person who attends such meeting, or who, in
writing, executed either before or after the holding thereof, waives such
notice, and such attendance or waiver shall be deemed equivalent to notice.
ARTICLE 9
MISCELLANEOUS
Section 1. FISCAL YEAR. The fiscal year of the Corporation shall
end on the Sunday closest to the end of the calendar year.
Section 2. SEAL. The seal of the Corporation shall be a device,
circular in form, containing the name of the Corporation, the figures "1996" and
the words, "Corporate Seal" and "Tennessee." The corporate seal may be used in
printing, engraving, lithographing, stamping or otherwise making, placing or
affixing, or causing to be printed, engraved, lithographed, stamped or otherwise
made, placed or affixed, upon any paper or document, by any process whatsoever,
an impression facsimile, or other reproduction of the corporate seal. The
Secretary, Assistant Secretary, Vice President-General Counsel or any other
person specifically authorized by the Board of Directors, may use the seal of
the Corporation in connection with corporate contracts or instruments.
ARTICLE 10
AMENDMENTS
Section 1. These Bylaws may be amended or repealed by the
shareholders at any annual meeting, or at any special meeting if notice of the
proposed amendment or new Bylaws is included in the notice of such meeting.
These Bylaws may be amended or repealed by the affirmative vote of a majority of
the Whole Board given at any meeting, the notice or waiver of notice whereof
mentions such amendment or repeal as one of the purposes of such meeting.
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Exhibit 4.1
-----------------------------------------------------------------------
TRUST INDENTURE
--------------------------------
Dated as of August 1, 1998
between
THOMAS & BETTS CORPORATION, as Issuer
and
THE BANK OF NEW YORK, as Trustee
------------------------------------
Debt Securities
-----------------------------------------------------------------------
<PAGE>
Reconciliation and tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act") and Indenture
<TABLE>
<CAPTION>
Trust Indenture Act Section Indenture
Section
<S> <C>
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
</TABLE>
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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.
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ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. DEFINITIONS......................................................................1
SECTION 1.02. COMPLIANCE CERTIFICATES AND OPINIONS.............................................9
SECTION 1.03. FORM OF DOCUMENTS DELIVERED TO TRUSTEE...........................................9
SECTION 1.04. ACTS OF HOLDERS.................................................................10
SECTION 1.05. NOTES, ETC. TO TRUSTEE AND COMPANY..............................................11
SECTION 1.06. NOTICE TO HOLDERS; WAIVER.......................................................11
SECTION 1.07. CONFLICT WITH TRUST INDENTURE ACT...............................................12
SECTION 1.08. EFFECT OF HEADINGS AND TABLE OF CONTENTS........................................12
SECTION 1.09. 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 2.01. FORMS GENERALLY.................................................................13
SECTION 2.02. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.................................14
SECTION 2.03. GLOBAL SECURITIES...............................................................14
ARTICLE 3
THE SECURITIES
SECTION 3.01. AMOUNT UNLIMITED; ISSUABLE IN SERIES............................................15
SECTION 3.02. DENOMINATIONS...................................................................19
SECTION 3.03. EXECUTION, AUTHENTICATION, DELIVERY AND DATING..................................19
SECTION 3.04. TEMPORARY SECURITIES............................................................21
SECTION 3.05. REGISTRATION, TRANSFER AND EXCHANGE.............................................21
SECTION 3.06. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES................................24
SECTION 3.07. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED..................................25
SECTION 3.08. PERSONS DEEMED OWNERS...........................................................26
SECTION 3.09. CANCELLATION....................................................................27
SECTION 3.10. COMPUTATION OF INTEREST.........................................................27
SECTION 3.11. CUSIP NUMBERS...................................................................27
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.01. SATISFACTION AND DISCHARGE OF INDENTURE.........................................28
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SECTION 4.02. APPLICATION OF TRUST MONEY......................................................29
ARTICLE 5
REMEDIES
SECTION 5.01. EVENTS OF DEFAULT...............................................................30
SECTION 5.02. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT..............................31
SECTION 5.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.................32
SECTION 5.04. TRUSTEE MAY FILE PROOFS OF CLAIM................................................33
SECTION 5.05. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.....................34
SECTION 5.06. APPLICATION OF MONEY COLLECTED..................................................34
SECTION 5.07. LIMITATION ON SUITS.............................................................34
SECTION 5.08. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST............................................................35
SECTION 5.09. 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 6.01. CERTAIN DUTIES AND RESPONSIBILITIES.............................................38
SECTION 6.02. NOTICE OF DEFAULTS..............................................................39
SECTION 6.03. CERTAIN RIGHTS OF TRUSTEE.......................................................39
SECTION 6.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES..........................40
SECTION 6.05. MAY HOLD SECURITIES.............................................................41
SECTION 6.06. MONEY HELD IN TRUST.............................................................41
SECTION 6.07. COMPENSATION AND REIMBURSEMENT..................................................41
SECTION 6.08. INTENTIONALLY LEFT BLANK........................................................42
SECTION 6.09. 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 7.01. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.......................49
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SECTION 7.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS..........................49
SECTION 7.03. REPORTS BY TRUSTEE..............................................................51
SECTION 7.04. REPORTS BY COMPANY..............................................................51
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. COMPANY MAY CONSOLIDATE, ETC. ON CERTAIN TERMS..................................52
SECTION 8.02. SUCCESSOR CORPORATION SUBSTITUTED...............................................53
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS..............................53
SECTION 9.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.................................54
SECTION 9.03. EXECUTION OF SUPPLEMENTAL INDENTURES............................................55
SECTION 9.04. EFFECT OF SUPPLEMENTAL INDENTURES...............................................56
SECTION 9.05. CONFORMITY WITH TRUST INDENTURE ACT.............................................56
SECTION 9.06. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES..............................56
ARTICLE 10
COVENANTS
SECTION 10.01. PAYMENT OF PRINCIPAL, ANY PREMIUM, INTEREST AND
ADDITIONAL AMOUNTS.............................................................56
SECTION 10.02. MAINTENANCE OF OFFICE OR AGENCY................................................56
SECTION 10.03. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST..............................57
SECTION 10.04. CORPORATE EXISTENCE............................................................59
SECTION 10.05. STATEMENT AS TO DEFAULT........................................................59
SECTION 10.06. ADDITIONAL AMOUNTS.............................................................59
SECTION 10.07. CALCULATION OF ORIGINAL ISSUE DISCOUNT.........................................60
ARTICLE 11
REDEMPTION OF SECURITIES
SECTION 11.01. APPLICABILITY OF ARTICLE.......................................................60
SECTION 11.02. ELECTION TO REDEEM; NOTICE TO TRUSTEE..........................................60
SECTION 11.03. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED..............................61
SECTION 11.04. NOTICE OF REDEMPTION...........................................................61
SECTION 11.05. DEPOSIT OF REDEMPTION PRICE....................................................62
SECTION 11.06. SECURITIES PAYABLE ON REDEMPTION DATE..........................................62
SECTION 11.07. SECURITIES REDEEMED IN PART....................................................63
ARTICLE 12
INTENTIONALLY LEFT BLANK
ARTICLE 13
DEFEASANCE AND COVENANT
SECTION 13.01. APPLICABILITY OF ARTICLE; COMPANY'S OPTION TO EFFECT
DEFEASANCE OR COVENANT DEFEASANCE..............................................63
SECTION 13.02. DEFEASANCE AND DISCHARGE.......................................................64
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SECTION 13.03. COVENANT DEFEASANCE............................................................64
SECTION 13.04. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE................................65
SECTION 13.05. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.........................................67
ARTICLE 14
SINKING FUNDS
SECTION 14.01. APPLICABILITY OF ARTICLE.......................................................68
SECTION 14.02. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES..........................68
SECTION 14.03. REDEMPTION OF SECURITIES FOR SINKING FUND......................................69
ARTICLE 15
SECURITIES IN FOREIGN CURRENCIES
SECTION 15.01. APPLICABILITY OF ARTICLE.......................................................69
SCHEDULE I Supplemental Indenture
EXHIBIT A Form of Debt Security
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<PAGE>
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 1.01. 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;
<PAGE>
(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 1.04.
"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.
<PAGE>
"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 3.07.
"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
<PAGE>
Securities, the clearing agency registered under the Securities Exchange Act of
1934, as amended, specified for that purpose as contemplated by Section 3.01.
"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 5.01.
"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 2.03 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
<PAGE>
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
3.01.
"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 10.06, 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 5.02.
<PAGE>
"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 6.09)
in trust for the Holders of such Securities in accordance with
Section 13.05; and
(iv) Securities which have been paid pursuant to Section 3.06 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 5.02, (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
<PAGE>
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 3.06 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
<PAGE>
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 3.05.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest on any
Security means a date fixed by the Trustee pursuant to Section 3.07.
"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 9.05.
"VICE PRESIDENT" when used with respect to the Company or the Trustee,
<PAGE>
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 1.02. 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 1.03. 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 1.04. 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
<PAGE>
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 6.01) 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 1.05. 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:
<PAGE>
(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 1.06. 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 1.07. 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 1.08. 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 1.09. SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Indenture by the Company shall bind its successors and assigns, whether so
<PAGE>
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 2.01. FORMS GENERALLY. The Securities of each series shall be
in substantially the form attached hereto as Exhibit A as shall be established
by or
<PAGE>
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 3.03 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 2.02. 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 2.03. 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
<PAGE>
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 3.03 or 3.04 with respect thereto.
Subject to the provisions of Section 3.03 and, if applicable, Section
3.04, 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 3.03
or 3.04 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 3.07, 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 3.08 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 3.01. AMOUNT UNLIMITED; ISSUABLE IN SERIES. The aggregate
principal amount of Securities which may be authenticated and delivered under
<PAGE>
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 3.03)
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 3.01).
(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 3.04, 3.05, 3.06, 9.06 or 11.07 and except for any Securities which,
pursuant to Section 3.03 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
<PAGE>
acceleration of the Maturity thereof pursuant to Section 5.02 or the method by
which such portion is to be determined;
(j) the application, if any, of either or both of Section 13.02 and
Section 13.03 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 3.05;
(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,
<PAGE>
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 3.03) 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 3.01, 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 3.02. 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
3.01. 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 3.03. 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
<PAGE>
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 2.01 and 3.01, 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 6.01) 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 2.01, 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 3.01, 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 3.01 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it
<PAGE>
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 3.09 together with a written statement (which need not
comply with Section 1.02 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 3.04. 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 3.03, 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
<PAGE>
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 3.05. 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.
<PAGE>
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 3.04, 9.06 or 11.07 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 11.03 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 3.01, 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
<PAGE>
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 3.06. 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
<PAGE>
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 3.07. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. Unless
otherwise provided as contemplated by Section 3.01 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
<PAGE>
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 3.08. PERSONS DEEMED OWNERS. Prior to due presentment of a
Security for registration of transfer, the Company, the Trustee and any agent of
<PAGE>
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 3.05 and 3.07)
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 3.09. 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 3.01 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
<PAGE>
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 4.01. 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 3.06 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 10.03) 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.
<PAGE>
(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 6.07, 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 3.04, 3.05, 3.06, 10.02 and 10.03, and the obligation
to pay Additional Amounts, if any, with respect to such Securities as
contemplated by Section 10.06 (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 4.01(a)(ii)), shall
survive.
SECTION 4.02. APPLICATION OF TRUST MONEY. Subject to the provisions of
the penultimate paragraph of Section 10.03, all money and Government Obligations
deposited with the Trustee pursuant to Section 4.01 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 5.01. 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
<PAGE>
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 3.01 with
respect to Securities of such series.
<PAGE>
SECTION 5.02. 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 5.01, 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 5.01 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 5.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE. The Company covenants that if:
<PAGE>
(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 5.04. 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
<PAGE>
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 6.07.
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 5.05. 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 5.06. 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 6.07;
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
<PAGE>
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 5.07. 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 5.08. 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 3.07) 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.
<PAGE>
SECTION 5.09. 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 3.06, 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 6.01, 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
<PAGE>
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 6.01. CERTAIN DUTIES AND RESPONSIBILITIES. (a) Except during
the
<PAGE>
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 6.02. NOTICE OF DEFAULTS. Within 90 days after the occurrence
of
<PAGE>
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 5.01(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 6.03. CERTAIN RIGHTS OF TRUSTEE. Subject to the provisions of
Section 6.01:
(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,
<PAGE>
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 6.04. 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 6.05. 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 6.06. 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 6.07. COMPENSATION AND REIMBURSEMENT. The Company agrees:
<PAGE>
(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 6.07, 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 5.01(e) or Section 5.01(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 6.08. INTENTIONALLY LEFT BLANK.
SECTION 6.09. 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
<PAGE>
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 6.09 and
shall fail to resign after written request therefor by the Company or
by any such
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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 3.06, 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
<PAGE>
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 7.01. 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
3.01
<PAGE>
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 3.01 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 7.02. 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 7.01 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 7.01
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 7.02(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 7.02(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 7.02(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
<PAGE>
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 7.02(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 7.02(b).
SECTION 7.03. 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 7.04. 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,
<PAGE>
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 8.01. 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
<PAGE>
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 8.02. 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 8.01, 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 9.01. 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;
<PAGE>
(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 2.01 and 3.01;
(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 9.02. 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,
<PAGE>
(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 5.02, 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 9.03. 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
6.01) 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 9.04. 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
<PAGE>
authenticated and delivered hereunder shall be bound thereby.
SECTION 9.05. 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 9.06. 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 10.01. 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 10.02. 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
<PAGE>
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 3.01, 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 10.03. 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
<PAGE>
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 6.09)
in respect of Government Obligations deposited with the Trustee (or such other
trustee) pursuant to Section 13.04, 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 10.04. 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 10.05. 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
<PAGE>
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 10.06. 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 10.07. 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
<PAGE>
(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 11.01. 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 3.01 for
Securities of any series) in accordance with this Article.
SECTION 11.02. 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 11.03. 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.
<PAGE>
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 11.04. 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 11.05. 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 10.03) 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
<PAGE>
which are to be redeemed on that date.
SECTION 11.06. 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 3.07.
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 11.07. 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
<PAGE>
ARTICLE 13
DEFEASANCE AND COVENANT
SECTION 13.01. APPLICABILITY OF ARTICLE; COMPANY'S OPTION TO EFFECT
DEFEASANCE OR COVENANT DEFEASANCE. If pursuant to Section 3.01 provision is made
for either or both of (a) defeasance of the Securities of a series under Section
13.02 or (b) covenant defeasance of the Securities of a series under Section
13.03 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 13.02 (if applicable) or Section 13.03 (if
applicable) be applied to the Outstanding Securities of such series upon
compliance with the conditions set forth below in this Article 13.
SECTION 13.02. 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 13.04 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 3.04, 3.05, 3.06, 6.07, 10.02, 10.03 and 10.06 (but only to the extent
that any Additional Amounts payable exceed the amount deposited in respect of
such Additional Amounts pursuant to Section 13.04(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 13.02 notwithstanding the prior exercise of its
option under Section 13.03 with respect to the Securities of such series.
<PAGE>
SECTION 13.03. 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 8.01, 10.05, 5.01(c) (as to Sections 8.01 and 10.05),
5.01(e), 5.01(f) and 5.01(g) (if Section 5.01(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 13.03.
SECTION 13.04. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. The
following shall be the conditions to application of either Section 13.02 or
Section 13.03 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 6.09 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
<PAGE>
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 13.02, 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 13.03, 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 3.01.
(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
13.02 or the covenant defeasance under Section 13.03 (as the case may be) have
been complied with.
<PAGE>
SECTION 13.05. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS. Subject to the provisions of the last
paragraph of Section 13.03, all money and Government Obligations (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee --
collectively, for purposes of this Section 13.05, 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 13.02 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 3.01 or the terms of such Security to receive
payment in a Currency other than that in which the deposit pursuant to Section
13.02 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 13.02 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 13.04 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
13.04 which, in the opinion of a nationally recognized firm of independent
public
<PAGE>
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 14.01. 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 14.02. 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 14.02. 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 14.03. 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
<PAGE>
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 14.02,
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 11.03 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 11.04. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 11.06 and 11.07.
ARTICLE 15
SECURITIES IN FOREIGN CURRENCIES
SECTION 15.01. 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 /s/ Fred R. Jones
------------------------------------
Name: Fred R. Jones
Title: Vice-President - Chief Financial Officer
THE BANK OF NEW YORK,
<PAGE>
as Trustee
By /s/ Robert A. Massimillo
------------------------------------
Name: Robert A. Massimillo
Title: Assistant Vice President
<PAGE>
SCHEDULE I
[FORM OF SUPPLEMENTAL INDENTURE]
THOMAS & BETTS CORPORATION
AND
THE BANK OF NEW YORK,
as Trustee
- -------------------------------------------------------------------------------
Supplemental Indenture
No. __
Dated as of _____________, ______
- -------------------------------------------------------------------------------
___% Notes due __________________, ______
<PAGE>
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 2.01 and 3.01 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 1.01. RELATION TO THE INDENTURE. This Supplemental Indenture
No. ___ constitutes an integral part of the Indenture.
SECTION 1.02. 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
<PAGE>
defined herein shall have the meanings they are given in the Indenture; and
(b) the provisions of general application stated in Section 1.01 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 2.01. TITLE. There shall be a series of Securities designated
the "___% Notes due __________, __________" (the "NOTES").
SECTION 2.02. 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 3.04, 3.05, 3.06, 9.06 or 11.07 of the
Indenture).
SECTION 2.03. MATURITY. The date on which the principal of the Notes
shall be payable shall be __________.
SECTION 2.04. 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 2.05. 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 2.06. REDEMPTION.
[Insert redemption terms]
The provisions of Article 13 of the Indenture [shall/shall not] apply
to the
<PAGE>
Notes.
SECTION 2.07. INTENTIONALLY LEFT BLANK.
SECTION 2.08. FORM OF NOTES. The Notes shall be in the form of Exhibit
A attached hereto.
SECTION 2.09. CURRENCY.
[Insert currency terms.]
SECTION 2.10. SINKING FUNDS.
[Insert sinking fund terms.]
SECTION 2.11. ADDITIONAL AMOUNTS. The provisions of Section 10.06 of
the Indenture [shall/shall not] apply to the Notes.
ARTICLE 3
MISCELLANEOUS PROVISIONS
SECTION 3.01. SUPPLEMENTAL INDENTURE. The Indenture, as supplemented
and amended by this Supplemental Indenture No. __, is in all respects hereby
adopted, ratified and confirmed.
SECTION 3.02. 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.
SECTION 3.03. GOVERNING LAW. This Supplemental Indenture shall be
governed and construed according to the laws of the State of New York.
<PAGE>
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:
<PAGE>
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.
<PAGE>
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.
<PAGE>
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.
<PAGE>
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:
---------------------------------
<PAGE>
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
<PAGE>
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
<PAGE>
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.
<PAGE>
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.
<PAGE>
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.
<PAGE>
THOMAS & BETTS CORPORATION
AND
THE BANK OF NEW YORK,
as Trustee
- -------------------------------------------------------------------------------
Supplemental Indenture
No. 1
Dated as of February 10, 1999
- -------------------------------------------------------------------------------
Medium Term Notes, Series B
Due Nine Months or More from Date of Issue
<PAGE>
SUPPLEMENTAL INDENTURE NO. 1, dated as of February 10, 1999
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 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 2.01 and 3.01 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. 1 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 1.01. RELATION TO THE INDENTURE. This Supplemental Indenture
constitutes an integral part of the Indenture.
SECTION 1.02. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.
For all purposes of this Supplemental Indenture unless otherwise specified
herein:
S-1
<PAGE>
(a) all terms defined in this Supplemental Indenture which are used
and not otherwise defined herein shall have the meanings they are given in the
Indenture;
(b) the provisions of general application stated in Section 1.01 of
the Indenture shall apply to this Supplemental Indenture, 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;
(c) Section 1.01 of the Indenture is amended by inserting the
following additional definitions:
"ATTRIBUTABLE DEBT" means, as to any particular lease under which any
Person is at the time liable for a term of more than 12 months, at any date as
of which the amount thereof is to be determined, the total net amount of rent
required to be paid by such Person under such lease during the remaining term
thereof (excluding any subsequent renewal or other extension options held by the
lessee), discounted from the respective due dates thereof to such date at the
interest rate inherent in such lease (such rate to be determined by any two of
the following: the President, any Vice President, the Treasurer and the
Controller of the Company), compounded annually. The net amount of rent required
to be paid under any such lease for any such period shall be the aggregate
amount of the rent payable by the lessee with respect to such period after
excluding amounts required to be paid on account of maintenance and repairs,
services, insurance, taxes, assessments, water rates and similar charges and
contingent rents (such as those based on sales). In the case of any lease which
is terminable by the lessee upon the payment of penalty, such net amount of rent
shall include the lesser of (i) the total discounted net amount of rent, as the
case may be, and (ii) the amount of such penalty (in which event no rent shall
be considered as required to be paid under such lease subsequent to the first
date upon which it may be so terminated).
"CONSOLIDATED NET ASSETS" means the total amount of assets (less
applicable reserves and other properly deductible items) after deducting
therefrom (i) all current liabilities (excluding any thereof which are by their
terms extendible or renewable at the option of the obligor thereon to a time
more than 12 months after the time as of which the amount thereof is being
computed) and (ii) appropriate adjustments on account of minority interests of
other Persons holding stock of the Company's subsidiaries, all as set forth on
the most recent balance sheet of the Company and its Consolidated Subsidiaries
and prepared in accordance with GAAP.
S-2
<PAGE>
"CONSOLIDATED SUBSIDIARY" means, at any date, any Subsidiary or other
entity the accounts of which would be consolidated with those of the Company in
its consolidated financial statements if such statements were prepared as of
such date.
"DEBT" means any notes, bonds, debentures, or other similar evidences
of indebtedness for money borrowed.
"FUNDED DEBT" means indebtedness created, assumed or guaranteed by a
Person for money borrowed which matures by its terms, or is renewable by the
borrower to a date, more than a year after the date of original creation,
assumption or guarantee.
"GAAP" means generally accepted accounting principles as in effect from
time to time, applied on a basis consistent (except for changes concurred in by
the Company's independent public accountants) with the most recent audited
consolidated financial statements of the Company and its Consolidated
Subsidiaries.
"LIEN" means, with respect to any asset, any pledge, mortgage, charge,
encumbrance or security interest in respect of such asset; PROVIDED that any
transaction (including, without limitation, any sale of accounts receivable)
which is treated as a sale of assets under GAAP shall be so treated hereunder
and any asset which is so sold shall not be deemed subject to a Lien. It is
understood that a contractual grant of a right of set-off does not create a Lien
in the absence of an agreement to maintain a balance against which such right
may be exercised.
"PRINCIPAL PROPERTY" means any manufacturing plant or distribution
facility, together with the land upon which it is erected and fixtures
comprising a part thereof, owned by the Company or any Restricted Subsidiary and
located in the United States, the gross book value (without deduction of any
reserve for depreciation) of which on the date as of which the determination is
being made in an amount which exceeds 1% of Consolidated Net Assets, other than
any such manufacturing plant or distribution facility or any portion thereof or
any such fixture (together with the land upon which it is erected and fixtures
comprising a part thereof) (i) which is financed by industrial development
bonds, industrial revenue bonds, pollution control bonds or other similar debt
issued or guaranteed by the United States of America or any State thereof, or
any department, agency, instrumentality or political subdivision of the United
States of America or any State thereof or (ii) which, in the opinion of the
Board of Directors as evidenced by a Board Resolution, is not of material
importance to the total business conducted by the Company and its Subsidiaries,
taken as a whole.
S-3
<PAGE>
"RESTRICTED SUBSIDIARY" means any Subsidiary of which, at the time of
determination, all of the outstanding capital stock (other than directors'
qualifying shares) is owned by the Company directly or indirectly and which, at
the time of determination, is primarily engaged in manufacturing, except a
Subsidiary (a) which neither transacts any substantial portion of its business
nor regularly maintains any substantial portion of its fixed assets within the
United States, (b) which is engaged primarily in the finance business including,
without limitation thereto, financing the operations of, or the purchase of
products which are products of or incorporate products of, the Company or its
subsidiaries, or (c) which is primarily engaged in ownership and development of
real estate, construction of buildings, or related activities, or a combination
of the foregoing. In the event that there shall at any time be a question as to
whether a Subsidiary is primarily engaged in manufacturing or is described in
the foregoing clause (a), (b) or (c), such matter shall be determined for all
purposes of this Indenture by a Board Resolution.
ARTICLE 2
THE SERIES OF NOTES
SECTION 2.01. TITLE. There shall be a series of Securities designated
the "Medium Term Notes, Series B, Due Nine Months or More from Date of Issue"
(the "NOTES").
SECTION 2.02. PRINCIPAL AMOUNT. The aggregate principal amount of the
Notes which may be authenticated and delivered under this Supplemental Indenture
shall not, except as permitted by the provisions of the Indenture, exceed
$150,000,000.
SECTION 2.03. FORM OF NOTES. The form of the Notes shall be
substantially in the form of Exhibit A attached hereto. The terms of such Notes
are herein incorporated by reference and are part of this Supplemental
Indenture. The Notes shall be registered in such names, shall be in such amounts
and shall have such other specific terms contemplated in the form of Note
attached hereto as Exhibit A, as shall be communicated by the Company to the
Trustee in accordance with the administrative procedures, as in effect from time
to time, established to provide for the issuance of the Notes.
SECTION 2.04. DEPOSITORY. The Depository for any Notes issued as
Global Securities shall be The Depository Trust Company in The City of New York
S-4
<PAGE>
("DTC") or any successor Depository appointed by the Company within 90 days of
the termination of the services of DTC (or any successor to DTC).
ARTICLE 3
EVENTS OF DEFAULT
SECTION 3.01. ADDITIONAL EVENT OF DEFAULT APPLICABLE TO THE NOTES.
Pursuant to Section 5.01(g) of the Indenture, an "Event of Default" shall be
deemed to occur with respect to the Notes if there is a default under any bonds,
debentures, notes or other evidences of indebtedness for money borrowed by the
Company (including a default with respect to Securities of any series other than
the Notes) or under any mortgage, indenture or instrument under which there may
be issued or by which there may be secured or evidenced any indebtedness for
money borrowed by the Company, whether such indebtedness exists as of the date
of this Supplemental Indenture or shall hereafter be created, which default
shall have resulted in such indebtedness in an aggregate principal amount
exceeding $25,000,000 becoming or being declared due and payable prior to the
date on which it would otherwise have become due and payable, without such
acceleration having been rescinded or annulled within a period of 60 days after
there shall have 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 Notes a written notice specifying such
default and requiring the Company to cause such acceleration to be rescinded or
annulled and stating that such notice is a "Notice of Default" hereunder;
PROVIDED, HOWEVER, that if, prior to a declaration of acceleration of the
maturity of the Notes or the entry of judgment in favor of the Trustee in a suit
pursuant to Section 5.03 of the Indenture, such default under such bonds,
debentures, notes or other evidences of indebtedness shall be remedied or cured
by the Company or waived by the holders of such indebtedness, then the Event of
Default under the Indenture by reason thereof shall be deemed likewise to have
been thereupon remedied, cured or waived without further action upon the part of
either the Trustee or any of the Holders of Notes.
S-5
<PAGE>
ARTICLE 4
COVENANTS
SECTION 4.01. ADDITIONAL COVENANTS APPLICABLE TO THE NOTES. In addition
to the covenants set forth in Article 10 of the Indenture, the following
covenants apply with respect to the Notes:
(a) LIMITATIONS UPON LIENS. The Company covenants and agrees for the
benefit of the Notes that neither it nor any Subsidiary will create, incur,
issue or assume any Debt secured by any Lien on any Principal Property now owned
or hereafter acquired by the Company or any Restricted Subsidiary, and that the
Company or any Subsidiary will not create, incur, issue or assume any Debt
secured by any Lien on any shares of stock or Debt now existing or owed or
hereafter created or acquired of any Restricted Subsidiary (such shares of stock
or Debt of any Restricted Subsidiary being called "Restricted Securities")
without in any such case effectively providing concurrently with the incurrence,
creation, issuance or assumption of any such Debt or the grant of any Lien with
respect to any such Debt that the Notes (together with, if the Company shall so
determine, any other Debt of the Company or such Subsidiary then existing or
thereafter created which is not subordinate to the Notes) shall be secured
equally and ratably with (or prior to) such secured Debt, so long as such
secured Debt shall be so secured. The foregoing restriction shall not, however,
apply to Debt secured by:
(i) Liens on any Principal Property or Restricted Securities
of the Company or any Subsidiary existing on the date of the original
issuance by the Company of the Notes;
(ii) Liens on any Principal Property or Restricted Securities
of any corporation existing at the time such corporation becomes a
Restricted Subsidiary or is merged with or into or consolidated with
the Company or Restricted Subsidiary, or at the time of a sale, lease
or other disposition of the properties of a corporation as an entirety
or substantially as an entirety to the Company or a Restricted
Subsidiary, or arising thereafter pursuant to contractual commitments
entered into prior to and not in contemplation of such corporation
becoming a Restricted Subsidiary or not in contemplation of any such
merger or consolidation or any such sale, lease or other disposition;
(iii) Liens on any Principal Property or Restricted
Securities of the Company or any Subsidiary existing at the time of
acquisition thereof (including acquisition through merger or
consolidation) or securing the payment of all or any part of the
purchase price or construction cost
S-6
<PAGE>
thereof or securing any Debt incurred prior to, at the time of or
within 360 days after, the acquisition of such Principal Property or
Restricted Securities or the completion of any such construction,
whichever is later, for the purposes of financing all or any part of
the purchase price or construction cost thereof;
(iv) Liens on any Principal Property to secure all or any
part of the cost of development, operation, construction, alteration,
repair or improvement of all or any part of such Principal Property, or
to secure Debt incurred prior to, at the time of or within 360 days
after, the completion of such development, operation, construction,
alteration, repair or improvement, whichever is later, for the purpose
of financing all or any part of such cost;
(v) Liens which secure Debt owing by a Subsidiary to the
Company or to a Restricted Subsidiary;
(vi) Liens on the property of the Company or a Restricted
Subsidiary in favor of the United States of America or any State
thereof, or any department, agency, instrumentality or political
subdivision of the United States of America or any State thereof, (A)
to secure partial progress, advance or other payments pursuant to any
contract or statute, (B) securing indebtedness incurred to finance all
or any part of the purchase price or cost of constructing, installing
or improving the property subject to such mortgages including mortgages
to secure Debt of the pollution control or industrial revenue bond
type, or (C) securing indebtedness issued or guaranteed by the United
States, any State, any foreign country or any department, agency,
instrumentality or political subdivision of any such jurisdiction; and
(vii) any extension, renewal, substitution or replacement of
any of the Liens referred to in paragraphs (i) through (vi) above or
the Debt secured thereby.
Notwithstanding the foregoing, the Company and any Subsidiary may
create, incur, issue or assume Debt secured by a Lien which would otherwise be
subject to the foregoing restrictions if the aggregate principal amount of all
Debt secured by Liens on Principal Properties and Restricted Securities then
outstanding (not including any such Debt secured by Liens permitted to be
incurred pursuant to paragraphs (i) through (vii) above) plus Attributable Debt
of the Company and its Restricted Subsidiaries in respect of Sale and Leaseback
Transactions (as defined below) that would otherwise be subject to the
restrictions described in clause (b) of this Section 4.01 does not at the time
such Debt is
S-7
<PAGE>
incurred exceed an amount equal to 10% of Consolidated Net Assets of the
Company.
For the purposes of this Section 4.01, the giving of a guarantee which
is secured by a Lien on Principal Property or Restricted Securities, and the
creation of a Lien on Principal Property or Restricted Securities to secure Debt
which existed prior to the creation of such Lien, shall be deemed to involve the
creation of Debt in an amount equal to the principal amount guaranteed or
secured by such Lien; but the amount of Debt secured by Liens on Principal
Properties and Restricted Securities shall be computed without cumulating the
underlying indebtedness with any guarantee thereof or Lien securing the same.
(b) LIMITATIONS UPON SALES AND LEASEBACKS. The Company covenants and
agrees for the benefit of the Notes that neither it nor any Restricted
Subsidiary will enter into any arrangement after the date of the original
issuance by the Company of the Notes with any bank, insurance company or other
lender or investor (other than the Company or another Restricted Subsidiary)
providing for the leasing by the Company or any such Restricted Subsidiary of
any Principal Property for a period of more than three years, which was or is
owned or leased by the Company or a Restricted Subsidiary and which has been or
is to be sold or transferred by the Company or such Restricted Subsidiary, more
than 180 days after the completion of construction and commencement of all
operations thereof by the Company or such Restricted Subsidiary, to such lender
or investor or to any Person to whom funds have been or are to be advanced by
such lender or investor on the security of such Principal Property (herein
referred to as a "SALE AND LEASEBACK TRANSACTION") unless, either:
(i) the Company and its Restricted Subsidiaries would be
entitled, pursuant to the provisions described in clause (a) of this
Section 4.01, to incur Debt secured by a Lien on such Principal
Property in a principal amount equal to or exceeding the Attributable
Debt in respect of such Sale and Leaseback Transaction without equally
and ratably securing the Notes, or
(ii) the Company, within 180 days after the sale or transfer,
applies or causes a Restricted Subsidiary to apply an amount equal to
the net proceeds of such sale or transfer (as determined by any two of
the following: the President, any Vice President, the Treasurer and the
Controller of the Company) to the retirement of Securities of any
series or other Funded Debt of the Company (other than Funded Debt
subordinated to the Notes) or Funded Debt of a Restricted Subsidiary;
PROVIDED that the amount to be so applied shall be reduced by (A) the
principal amount of Notes delivered within 180 days after such sale or
transfer to the Trustee
S-8
<PAGE>
for retirement and cancellation, and (B) the principal amount of any
such Funded Debt of the Company or a Restricted Subsidiary, other than
Notes voluntarily retired by the Company or a Restricted Subsidiary
within 180 days after such sale or transfer to the Trustee for
retirement and cancellation, excluding in the case of both (A) and (B),
retirement pursuant to any mandatory sinking fund payment or any
mandatory prepayment provision or by payment at maturity.
(c) RESTRICTIONS ON FUNDED DEBT OF RESTRICTED SUBSIDIARIES. The
Company covenants and agrees for the benefit of the Notes that it will not
permit any Restricted Subsidiary to create, incur, issue, assume or guarantee
any Funded Debt. This restriction will not apply if:
(i) the Company or such Restricted Subsidiary could create
Debt secured by Liens in accordance with clause (a) of this Section
4.01, or enter into a Sale or Leaseback Transaction in accordance with
clause (b) of this Section 4.01, in an amount equal to such Funded
Debt, without equally and ratably securing the Notes;
(ii) such Funded Debt existed on the date of the original
issuance by the Company of the Notes;
(iii) such Funded Debt is owed to the Company or any
Subsidiary;
(iv) such Funded Debt existed at the time the corporation
that issued such Funded Debt became a Restricted Subsidiary, or was
merged with or into or consolidated with such Restricted Subsidiary, or
at the time of a sale, lease or other disposition of the properties of
such corporation as an entirety to such Restricted Subsidiary, or
arising thereafter (A) otherwise than in connection with the borrowing
of money arranged thereafter and (B) pursuant to contractual
commitments entered into prior to and not in contemplation of such
corporation becoming a Restricted Subsidiary and not in contemplation
of any such merger or consolidation or any such sale, lease or other
disposition;
(v) such Funded Debt is guaranteed by the Company;
(vi) such Funded Debt is guaranteed by a governmental agency;
(vii) such Funded Debt is issued, assumed or guaranteed in
connection with, or with a view to, compliance by such Restricted
Subsidiary with the requirements of any program adopted by any federal,
S-9
<PAGE>
state or local governmental authority and applicable to such Restricted
Subsidiary and providing financial or tax benefits to such Restricted
Subsidiary which are not available directly to the Company;
(viii) such Funded Debt is issued, assumed or guaranteed to
pay all or any part of the purchase price or the construction cost of
property or equipment acquired or constructed by a Restricted
Subsidiary, provided such Funded Debt is incurred within 360 days after
acquisition, completion of construction or commencement of full
operation of such property, whichever is later;
(ix) such Funded Debt is nonrecourse; or
(x) such Funded Debt is incurred for the purpose of
extending, renewing, substituting, replacing or refunding Funded Debt
permitted by the foregoing.
Notwithstanding the foregoing, any Restricted Subsidiary may create,
incur, issue, assume or guarantee Funded Debt which would otherwise be subject
to the foregoing restrictions in an aggregate principal amount which, together
with the aggregate outstanding principal amount of all other Funded Debt of the
Company's Restricted Subsidiaries which would otherwise be subject to the
foregoing restrictions (not including Funded Debt permitted to be incurred
pursuant to clauses (i) through (x) above), does not at the time such Funded
Debt is incurred exceed an amount equal to 10% of Consolidated Net Assets.
ARTICLE 5
DEFEASANCE
SECTION 5.01. DEFEASANCE. The provisions of Sections 13.02 and 13.03
of the Indenture will apply to the Notes.
SECTION 5.02. COVENANT DEFEASANCE. Section 13.03 of the Indenture is
amended by (a) deleting "and" where it appears after "Section 5.01(f)" and
inserting a comma in its place and (b) inserting "and any other obligations
specified in a Board Resolution or in one or more indentures supplemental
hereto" after "(if Section 5.01(g) is specified as applicable to the Securities
of such series)".
SECTION 5.03. ADDITIONAL COVENANT DEFEASANCE. In addition to the
obligations referred to in Section 13.03 of the Indenture, "covenant
defeasance",
S-10
<PAGE>
as defined in such Section, will also apply to the obligations of the Company
set forth in clauses (a) and (b) of Section 4.01 of this Supplemental Indenture.
ARTICLE 6
MISCELLANEOUS PROVISIONS
SECTION 6.01. SUPPLEMENTAL INDENTURE. The Indenture, as supplemented
and amended by this Supplemental Indenture, is in all respects hereby adopted,
ratified and confirmed.
SECTION 6.02. COUNTERPARTS. This Supplemental Indenture may be
executed in any number of counterparts, each of which shall be an original; but
such counterparts shall together constitute but one and the same instrument.
SECTION 6.03. GOVERNING LAW. This Supplemental Indenture and the Form
of Note attached hereto as an exhibit 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 entirely in such State.
S-11
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, as of the day and year first written above.
THOMAS & BETTS CORPORATION
By /s/ Fred R. Jones
------------------------------------
Name: Fred R. Jones
Title: Vice President - Chief Finanical Officer
THE BANK OF NEW YORK, as Trustee
By /s/ Robert A. Massimillo
------------------------------------
Name: Robert A. Massimillo
Title: Assistant Vice President
S-12
<PAGE>
Exhibit A
[FACE OF NOTE]
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.
<TABLE>
<CAPTION>
<S> <C> <C>
REGISTERED CUSIP No.: PRINCIPAL AMOUNT:
No. __________ __________ ___________________
THOMAS & BETTS CORPORATION
MEDIUM-TERM NOTE SERIES ___
ORIGINAL ISSUE DATE: INTEREST RATE: % STATED MATURITY DATED:
INTEREST PAYMENT DATE(S) DEFAULT RATE: %
[ ] __________ and __________
[ ] Other:
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: % PERCENTAGE
REDUCTION: %
OPTIONAL REPAYMENT [ ] CHECK IF AN AUTHORIZED
DATE(S): ORIGINAL ISSUE DENOMINATION:
DISCOUNT NOTE [ ] $1,000 and integral multiples
Issue Price: % thereof
[ ] Other
ADDENDUM ATTACHED OTHER/ADDITIONAL PROVISIONS:
[ ] Yes
[ ] No
</TABLE>
A-1
<PAGE>
Thomas & Betts Corporation, a Tennessee corporation (the "Company",
which term includes any successor entity under the Indenture hereinafter
referred to), for value received, hereby promises to pay to , or
registered assigns, the principal sum of , on the Stated Maturity
Date specified above (or any Redemption Date or Repayment Date, each as
defined on the reverse hereof) (each such Stated Maturity Date, Redemption
Date or Repayment Date being hereinafter referred to as the "Maturity Date"
with respect to the principal repayable on such date) and to pay interest
thereon, at the Interest Rate per annum specified above, until the principal
hereof is paid or duly made available for payment, and (to the extent that the
payment of such interest shall be legally enforceable) at the Default Rate per
annum specified above on any overdue principal, premium or interest.
The Company will pay interest in arrears on each Interest Payment Date, if
any, specified above (each, an "Interest Payment Date"), commencing with the
first Interest Payment Date next succeeding the Original Issue Date specified
above, and on the Maturity Date; PROVIDED, HOWEVER, that if the Original Issue
Date occurs between a Record Date (as defined below) and the next succeeding
Interest Payment Date, interest payments will commence on the second Interest
Payment Date next succeeding the Original Issue Date to the holder of this
Note on the Record Date with respect to such second Interest Payment Date.
Interest on this Note will be computed on the basis of a 360-day year of
twelve 30-day months.
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from, and including, the Original Issue Date if no interest has been
paid or duly provided for) to, but excluding, the applicable Interest Payment
Date or the Maturity Date, as the case may be (each, an "Interest Period"). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions described herein, 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 fifteenth calendar day (whether or
not a Business Day, as defined below) immediately preceding such Interest
Payment Date (each, a "Record Date"); PROVIDED, HOWEVER, that interest payable
on the Maturity Date will be payable to the person to whom the principal hereof
and premium, if any, hereon shall be payable. Any such interest not so
punctually paid or duly provided for ("Defaulted Interest") will forthwith cease
to be payable to the holder on any Record Date, and shall be paid to the person
in whose name this Note is registered at the close of business on a special
record date (the "Special Record Date") for the payment of such Defaulted
Interest to be fixed by the Trustee hereinafter referred to, notice whereof
shall be given to the holder of this Note by the Trustee not less than 10
calendar days prior to such Special Record Date or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any
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securities exchange on which this Note may be listed, and upon such notice as
may be required by such exchange, all as more fully provided for in the
Indenture.
Payment of principal, premium, if any, and interest in respect of this
Note due on the Maturity Date will be made in immediately available funds upon
presentation and surrender of this Note (and, with respect to any applicable
repayment of this Note, a duly completed election form as contemplated on the
reverse hereof) at the corporate trust office of the Trustee maintained for that
purpose in The City of New York, currently located at 101 Barclay Street, New
York, New York 10286, or at such other paying agency in The City of New York, as
the Company may determine; PROVIDED, HOWEVER, that payment to the Depository may
be made by wire transfer to the account designated by the Depository in writing.
If any Interest Payment Date or the Maturity Date falls on a day that
is not a Business Day, the required payment of principal, premium, if any, or
interest shall be made on the next succeeding Business Day with the same force
and effect as if made on the date such payment was due, and no interest shall
accrue with respect to such payment for the period from and after such Interest
Payment Date or the Maturity Date, as the case may be, to the date of such
payment on the next succeeding Business Day.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking institutions
are authorized or required by law, regulation or executive order to close in The
City of New York.
The Company is obligated to make payment of principal, premium, if any,
and interest in respect of this Note in United States dollars.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and, if so specified on the face hereof, in an
addendum hereto, which further provisions shall have the same force and effect
as if set forth on the face hereof.
Notwithstanding any provisions to the contrary contained herein, if the
face of this Note specifies that an addendum is attached hereto or that
"Other/Additional Provisions" apply, this Note shall be subject to the terms set
forth in such addendum or such "Other/Additional Provisions".
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.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
THOMAS & BETTS CORPORATION
By:
------------------------------------
Name:
Title:
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<PAGE>
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:
---------------------------------
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<PAGE>
[REVERSE OF NOTE]
THOMAS & BETTS CORPORATION
MEDIUM-TERM NOTE SERIES __
This Note is one of a duly authorized series of Securities (the
"Securities") of the Company issued and to be issued under an Indenture, dated
as of August 1, 1998, as amended, modified or 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
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Note is one of the series of Securities
designated as "Medium-Term Notes Series ___, Due Nine Months or More From Date
of Issue" (the "Notes"). All terms used but not defined in this Note or in an
addendum hereto shall have the meanings assigned to such terms in the Indenture
or on the face hereof, as the case may be.
This Note is issuable only in registered form without coupons in
minimum denominations of U.S.$1,000 and integral multiples thereof or the
minimum authorized denomination specified on the face hereof (the "Authorized
Denomination").
This Note will not be subject to any sinking fund and, unless otherwise
specified on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or repayable prior to the Stated Maturity
Date.
This Note will be subject to redemption at the option of the Company on
any date on or after the Initial Redemption Date, if any, specified on the face
hereof, in whole or from time to time in part in increments of U.S.$1,000 or the
minimum Authorized Denomination (provided that any remaining principal amount
hereof shall be at least U.S.$1,000 or such minimum Authorized Denomination), at
the Redemption Price (as defined below), together with unpaid interest accrued
thereon to the date fixed for redemption (each, a "Redemption Date"), on notice
given no more than 60 nor less than 30 calendar days prior to the Redemption
Date and in accordance with the provisions of the Indenture. The "Redemption
Price" shall initially be the Initial Redemption Percentage specified on the
face hereof multiplied by the unpaid principal amount of this Note to be
redeemed. The Initial Redemption Percentage shall decline at each anniversary of
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<PAGE>
the Initial Redemption Date by the Annual Redemption Percentage Reduction, if
any, specified on the face hereof until the Redemption Price is 100% of unpaid
principal amount to be redeemed. In the event of redemption of this Note in part
only, a new Note of like tenor for the unredeemed portion hereof and otherwise
having the same terms as this Note shall be issued in the name of the holder
hereof upon the presentation and surrender hereof.
This Note will be subject to repayment by the Company at the option of
the holder hereof on the Optional Repayment Date(s), if any, specified on the
face hereof, in whole or in part in increments of U.S.$1,000 or the minimum
Authorized Denomination (provided that any remaining principal amount hereof
shall be at least U.S.$1,000 or such minimum Authorized Denomination), at a
repayment price equal to 100% of the principal amount to be repaid, together
with unpaid interest accrued thereon to the date fixed for repayment (each, a
"Repayment Date"). For this Note to be repaid, this Note must be received,
together with the form hereon entitled "Option to Elect Repayment" duly
completed, by the Trustee at its corporate trust office not more than 60 nor
less than 30 calendar days prior to the Repayment Date. Exercise of such
repayment option by the holder hereof will be irrevocable. In the event of
repayment of this Note in part only, a new Note of like tenor for the unrepaid
portion hereof and otherwise having the same terms as this Note shall be issued
in the name of the holder upon the presentation and surrender hereof.
If this Note is an Original Issue Discount Note as specified on the
face hereof, the amount payable to the holder of this Note in the event of
redemption, repayment or acceleration of maturity will be equal to the sum of
(1) the Issue Price specified on the face hereof (increased by any accruals of
the Discount, as defined below) and, in the event of any redemption of this Note
(if applicable), multiplied by the Initial Redemption Percentage (as adjusted by
the Annual Redemption Percentage Reduction, if applicable) and (2) any unpaid
interest on this Note accrued from the Original Issue Date to the Redemption
Date, Repayment Date or date of acceleration of maturity, as the case may be.
The difference between the Issue Price and 100% of the principal amount of this
Note is referred to herein as the "Discount".
For purposes of determining the amount of Discount that has accrued as
of any Redemption Date, Repayment Date or date of acceleration of maturity of
this Note, such Discount will be accrued so as to cause the yield on the Note to
be constant. The constant yield will be calculated using a 30-day month, 360-day
year convention, a compounding period that, except for the Initial Period (as
defined below), corresponds to the shortest period between Interest Payment
Dates (with ratable accruals within a compounding period) and an assumption that
the maturity of this Note will not be accelerated. If the period from the
Original
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<PAGE>
Issue Date to the initial Interest Payment Date (the "Initial Period") is
shorter than the compounding period for this Note, a proportionate amount of the
yield for an entire compounding period will be accrued. If the Initial Period is
longer than the compounding period, then such period will be divided into a
regular compounding period and a short period, with the short period being
treated as provided in the preceding sentence.
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default with
respect to the Notes, 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 Securities at any time by the
Company and the Trustee with the consent of the holders of not less than a
majority of the aggregate principal amount of all Securities at the time
outstanding and affected thereby. The Indenture also contains provisions
permitting the holders of not less than a majority of the aggregate principal
amount of the outstanding Securities of any series, on behalf of the holders of
all such Securities, to waive compliance by the Company with certain provisions
of the Indenture. Furthermore, provisions in the Indenture permit the holders of
not less than a majority of the aggregate principal amount of the outstanding
Securities of any series, in certain instances, to waive, on behalf of all of
the holders of Securities of such series, 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 other Notes issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this 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 principal, premium, if any, and interest in
respect of this Note at the times, places and rate or formula, and in the coin
or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, the transfer of this Note is registrable in the Security
Register of
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the Company upon surrender of this Note for registration of transfer at the
office or agency of the Company in any place where the principal hereof and any
premium or interest hereon are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the holder hereof or by his attorney duly
authorized in writing, and thereupon one or more new Notes, 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 therein
and herein set forth, this Note is exchangeable for a like aggregate principal
amount of Notes of different authorized denominations but otherwise having the
same terms and conditions, as requested by the holder hereof surrendering the
same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
holder in whose name this Note is registered as the owner thereof 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.
This Note and all documents, agreements, understandings and
arrangements relating to any transaction contemplated hereby or thereby have
been executed or entered into by an officer of the Company in his/her capacity
as an officer of the Company which has been formed as a Tennessee corporation,
and not individually, and neither the trustees, officers or shareholders of the
Company shall be bound or have any personal liability hereunder or thereunder.
Each party hereto shall look solely to the assets of the Company for
satisfaction of any liability of the Company in respect of this Note and all
documents, agreements, understandings and arrangements relating to any
transaction contemplated hereby or thereby and will not seek recourse or
commence any action against any of the trustees, officers or shareholders of the
Company or any of their personal assets for the performance or payment of any
obligation hereunder or thereunder. The foregoing shall also apply to any future
documents, agreements, understandings, arrangements and transactions between the
parties hereto.
The Indenture and this Note 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 entirely in such State.
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<PAGE>
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.
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<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s)
the Company to repay this Note (or portion hereof specified below) pursuant to
its terms at a price equal to 100% of the principal amount to be repaid,
together with unpaid interest accrued hereon to the Repayment Date, to the
undersigned, at
- ------------------------------------------------------------------
(Please print or typewrite name and address of the
undersigned)
For this Note to be repaid, the Trustee must receive at its
corporate trust office in The City of New York, currently located at 101 Barclay
Street, New York, New York 10268, this Note with this "Option to Elect
Repayment" form duly completed.
If less than the entire principal amount of this Note is to be
repaid, specify the portion hereof (which shall be increments of U.S.$1,000)
which the holder elects to have repaid and specify the denomination or
denominations (which shall be an Authorized Denomination) of the Notes to be
issued to the holder for the portion of this Note not being repaid (in the
absence of any such specification, one such Note will be issued for the portion
not being repaid).
Principal Amount
to be Repaid: $
Date: _________
Notice: The signature(s) on this Option to
Elect Repayment correspond(s) with the
name(s) as written upon the face of this
Note in every particular, without alteration
or enlargement or any change whatsoever.
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