As filed with the Securities and Exchange Commission on June 14, 1996
Registration No. 333-
________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_________________________
C. R. BARD, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
New Jersey 22-1454160
(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
</TABLE>
730 Central Avenue
Murray Hill, New Jersey 07974
(908) 277-8000
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
_________________________
Richard A. Flink, Esq.
C. R. Bard, Inc.
730 Central Avenue
Murray Hill, New Jersey 07974
(908) 277-8000
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
_________________________
Copies to:
<TABLE>
<S> <C>
Philip T. Ruegger III Richard Truesdell
Simpson Thacher & Bartlett Davis Polk & Wardwell
425 Lexington Avenue 450 Lexington Avenue
New York, New York 10017 New York, New York 10017
</TABLE>
_________________________
Approximate date of commencement of proposed sale to public: From time to time
after the Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, please check the following box. /x/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
_________________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Maximum
Title of Securities Aggregate Amount of
to be Registered Offering Price<F1> Registration Fee<F2>
<S> <C> <C>
Debt Securities . . . . . . $200,000,000 $68,966
</TABLE>
[FN]
<F1> In U.S. Dollars or the equivalent thereof if denominated in one or more
foreign currencies or foreign currency units.
<F2> Calculated in accordance with Rule 457(o) under the Securities Act.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
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Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
- ------------------------------------------------------------------------------
SUBJECT TO COMPLETION, DATED JUNE 14, 1996
C. R. Bard, Inc.
Debt Securities
_________________________
C. R. Bard, Inc. (the "Company") may offer from time to time
unsecured debt securities ("Debt Securities") consisting of debentures, notes
and/or other evidences of unsecured indebtedness in one or more series, or any
combination of the foregoing, at an aggregate initial offering price not to
exceed $200,000,000, or its equivalent if some or all of the Debt Securities
are denominated in one or more foreign currencies, at prices and on terms to be
determined at or prior to the time of sale in light of market conditions at the
time of sale.
Specific terms of the particular Debt Securities in respect of which
this Prospectus is being delivered will be set forth in one or more
accompanying Prospectus Supplements (each a "Prospectus Supplement"), together
with the terms of the offering of the Debt Securities and the initial price and
the net proceeds to the Company from the sale thereof. The Prospectus
Supplement will set forth with regard to the particular Debt Securities,
without limitation, the following: the specific designation, aggregate
principal amount, authorized denomination, maturity, rate or method of
calculation of interest and dates for payment thereof, any exchangeability,
conversion, redemption, prepayment or sinking fund provisions, the currency or
currencies or currency unit or currency units in which principal, premium, if
any, or interest, if any, is payable, any modifications of or additions to the
covenants described in this Prospectus and any other specific terms thereof.
The amounts payable by the Company in respect of Debt Securities may be
calculated by reference to the value, rate or price of one or more specified
commodities, currencies or indices to the extent set forth in the Prospectus
Supplement. The Prospectus Supplement will also contain information, where
applicable, about certain United States federal income tax considerations
relating to the Debt Securities covered by the Prospectus Supplement.
The Company may sell the Debt Securities directly, through agents
designated from time to time or through underwriters or dealers. If any agents
of the Company or any underwriters or dealers are involved in the sale of the
Debt Securities, the names of such agents, underwriters or dealers, any
applicable commissions and discounts, and the net proceeds to the Company will
be set forth in the applicable Prospectus Supplement. See "Plan of
Distribution" for possible indemnification arrangements for agents,
underwriters and dealers.
_________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
_________________________
This Prospectus may not be used to consummate sales of
Debt Securities unless accompanied by a Prospectus Supplement.
The date of this Prospectus is , 1996.
No person has been authorized to give any information or to make any
representation other than those contained in this Prospectus in connection with
the offering described herein, and, if given or made, such other information or
representation must not be relied upon as having been authorized by the Company
or by any underwriter, dealer or agent. This Prospectus does not constitute an
offer to sell, or a solicitation of an offer to buy any of the securities
offered hereby in any jurisdiction where, or to any person to whom, it is
unlawful to make such offer or solicitation. Neither the delivery of this
Prospectus nor any sale made hereunder shall, under any circumstances, create
an implication that there has not been any change in the facts set forth in
this Prospectus or change in the affairs of the Company at any time subsequent
to the date hereof.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the Commission's regional offices
at 7 World Trade Center, 13th Floor, New York, NY 10048 and Suite 1400, 500
West Madison Street, Chicago, Illinois 60661. Copies of such material can be
obtained from the Public Reference Section of the Commission, 450 Fifth Street,
N.W., Washington, D.C. 20549 at prescribed rates. Such material may also be
accessed electronically by means of the Commission's home page on the Internet
at http://www.sec.gov. The Company's common stock is listed on the New York
Stock Exchange, and reports and other information herein can also be inspected
at the office of the New York Stock Exchange, 20 Broad Street, New York, New
York 10005.
The Company has filed a registration statement on Form S-3 (herein,
together with all amendments and exhibits, referred to as the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities
Act"), with respect to the Debt Securities being offered pursuant to this
Prospectus. This Prospectus does not contain all of the information set forth
in the Registration Statement, certain parts of which are omitted in accordance
with the rules and regulations of the Commission. The Registration Statement
may be inspected and copied at the public reference facilities maintained by
the Commission at the addresses set forth in the preceding paragraph.
Statements contained herein concerning the provisions of any documents are not
necessarily complete and, in each instance that a copy of such document has
been filed as an exhibit to the Registration Statement or otherwise filed with
the Commission, reference is made to the copy so filed. Each such statement is
qualified in its entirety by such reference.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents have been filed by the Company with the
Commission (File No. 1-06926) and are hereby incorporated herein by reference:
(1) The Company's Annual Report on Form 10-K for the year ended
December 31, 1995 (which incorporates by reference certain
information from the Company's Proxy Statement relating to
the 1996 Annual Meeting of Shareholders); and
(2) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1996.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date of this Prospectus and prior to
the termination of this offering shall be deemed to be incorporated herein by
reference. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus and the Registration Statement of which it is a
part to the extent that a statement contained herein or in any other
subsequently filed document which also is incorporated or deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus or such Registration
Statement.
The Company undertakes to provide without charge to each person to
whom a copy of this Prospectus has been delivered, upon written or oral request
of such person, a copy of any or all of the documents which have been or may be
incorporated herein by reference, other than exhibits to such documents (unless
such exhibits are specifically incorporated by reference into such documents).
Requests for such copies should be directed to C. R. Bard, Inc., 730 Central
Avenue, Murray Hill, New Jersey 07974, Attention: Investor Relations Department
(telephone: (908) 277-8000).
THE COMPANY
The Company is a leading multinational developer, manufacturer and
marketer of health care products, and a pioneer in the development of
disposable medical products for standardized procedures. The Company designs
and manufactures medical, surgical, diagnostic and patient care devices which
it markets worldwide to hospitals, individual health care professionals,
extended care facilities and alternate site facilities.
Surgical Products. Currently, the Company's largest product group is
surgical products. The Company's surgical products include specialty access
catheters and ports; implantable blood vessel replacements; fabrics and meshes
for vessel and hernia repair; surgical suction, irrigation and drainage
products; devices for endoscopic, orthopedic and laparoscopic surgery; blood
management devices; products for wound management and skin care; percutaneous
feeding devices; and hemostasis products.
Cardiovascular Products. Cardiovascular care devices currently
represent the Company's next largest product group. The Company's line of
cardiovascular products includes balloon angioplasty catheters used for
nonsurgical treatment of obstructed arteries; steerable guidewires, guide
catheters and inflation devices; angiography catheters and accessories;
introducer sheaths; electrophysiology products including cardiac mapping and
electrophysiology laboratory systems and diagnostic and temporary pacing
electrode catheters; cardiopulmonary support systems; and blood oxygenators and
related products used in open-heart surgery.
Urological Products. The Company has historically been known for its
products in the urological field, where its Foley catheter is the leading
device for bladder drainage. The Company offers a complete line of other
urological products including procedural kits and trays and related urine
monitoring and collection systems; biopsy and other cancer monitoring and
detection products; urethral stents; and specialty devices for incontinence,
ureteroscopic procedures and stone removal.
The principal executive offices of the Company are located at 730
Central Avenue, Murray Hill, New Jersey 07974. The telephone number is (908)
277-8000.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges
of the Company for the periods indicated:
<TABLE>
<CAPTION>
Three Months Years
Ended March 31, Ended December 31,
---------------- -----------------------------------------------------
1996 1995 1994 1993 1992 1991
---------------- --------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges 2.30<F1> 4.89 5.46 6.41 7.00 5.12
</TABLE>
____________________
[FN]
<F1> During the three months ended March 31, 1996, the Company (i) received
royalty payments of $9,900,000 related to sales of angioplasty balloon
catheter technology for prior periods, (ii) reorganized its global
cardiology business and recorded a $31,000,000 write-down of assets
related to its guidewire technology and (iii) recorded miscellaneous
charges amounting to $6,000,000 primarily related to legal settlements.
Excluding the effect of these unusual items, for the three months ended
March 31, 1996 earnings before taxes would have been $37,700,000 and the
ratio of earnings to fixed charges would have been 5.69.
For purposes of calculating the ratio of earnings to fixed charges,
earnings consist of income from continuing operations before income taxes and
fixed charges (excluding capitalized interest) but excludes undistributed
earnings of less than 50% owned companies carried at equity. Fixed charges
consist of interest on indebtedness, whether expensed or capitalized, and the
portion of rental expense the Company believes to be representative of
interest.
USE OF PROCEEDS
Except as may otherwise be disclosed in an applicable Prospectus
Supplement, the net proceeds to the Company from the sale of the Debt
Securities offered hereby are expected to be used for general corporate
purposes, which may include financing capital expenditures and working capital
requirements, stock repurchases, acquisitions or repayment or refinancing of
existing indebtedness. Pending application, proceeds may be invested in short-
term, marketable securities.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be unsecured obligations issued under an
Indenture, dated as of , 1996 (the "Indenture"), between the Company and
The Chase Manhattan Bank, N.A., as Trustee (the "Trustee"). The following
summaries do not purport to be complete and are subject to the detailed
provisions of the Indenture, a copy of which is filed as an exhibit to the
Registration Statement. Wherever particular provisions of the Indenture or
terms defined therein are referred to, such provisions are incorporated by
reference as part of the statements made herein, and such statements are
qualified in their entirety by such reference to the provisions of the
Indenture. Capitalized terms used below and not otherwise defined are used as
defined in the Indenture. Section references are to the Indenture.
General
The Indenture does not limit the aggregate principal amount of Debt
Securities which may be issued thereunder and provides that the Debt Securities
may be issued from time to time in one or more series. The Debt Securities
will rank equally with all other unsecured and unsubordinated obligations of
the Company. Except as described under "-- Certain Restrictions on the
Company," the Indenture does not limit other indebtedness or securities which
may be incurred or issued by the Company or any of its subsidiaries or contain
financial or similar restrictions on the Company or any of its subsidiaries.
The Company's rights and the rights of its creditors, including holders of Debt
Securities, to participate in any distribution of assets of any subsidiary of
the Company upon the Subsidiary's liquidation or reorganization or otherwise
are effectively subordinated to the claims of the subsidiary's creditors,
except to the extent that the Company or any of its creditors may itself be a
creditor of that subsidiary.
Reference is made to the applicable Prospectus Supplement for the
following terms of and information relating to the Offered Debt Securities: (i)
the designation of the Offered Debt Securities; (ii) the aggregate principal
amount of the Offered Debt Securities; (iii) the date or dates on which
principal of, and premium, if any, on, the Offered Debt Securities will be
payable; (iv) the rate or rates (which may be fixed or variable) at which the
Offered Debt Securities shall bear interest, if any, or the method by which
such rate or rates shall be determined, the basis on which such interest, if
any, shall be calculated if other than a 360-day year consisting of twelve 30-
day months, the date or dates from which such interest, if any, will accrue and
on which such interest, if any, will be payable and the related record dates;
(v) if other than the offices of the Trustee, the place where the principal of,
and premium, if any, and interest, if any, on, the Offered Debt Securities will
be payable; (vi) any redemption, repayment or sinking fund provisions; (vii) if
other than denominations of $1,000 or multiples thereof, the denominations in
which the Offered Debt Securities will be issuable; (viii) if other than the
principal amount thereof, the portion of the principal amount due upon
acceleration; (ix) if other than U.S. dollars, the currency or currencies or
currency unit or currency units in which the Offered Debt Securities will be
denominated and in which principal of, and premium, if any, and interest, if
any, on, the Offered Debt Securities will or may be payable; (x) any index used
to determine the amount of payments or principal of, and premium, if any, and
interest, if any, on, the Offered Debt Securities; (xi) the terms and
conditions, if any, pursuant to which the Offered Debt Securities may be
converted or exchanged for other securities of the Company or any other person;
(xii) whether the Offered Debt Securities shall be issued in the form of one or
more Global Securities; (xiii) the identity of any trustees, depositories,
authenticating or paying agents, transfer agents or registrars with respect to
the Offered Debt Securities and (xiv) any other specific terms of the Offered
Debt Securities (Section 2.3).
The Debt Securities will be issued as registered securities either in
certificated form or in the form of one or more global securities under a book-
entry system, as specified in the accompanying Prospectus Supplement. See
"--Book-Entry System."
Unless otherwise specified in the applicable Prospectus Supplement,
principal and premium, if any, will be payable, and the Debt Securities will be
transferable and exchangeable without any service charge, at the office of the
Trustee. However, the Company may require payment of the sum sufficient to
cover any tax or other governmental charge, payable in connection with any such
transfer or exchange (Sections 2.8 and 3.2).
Unless otherwise specified in the applicable Prospectus Supplement,
interest on any series of Debt Securities will be payable on the interest
payment dates set forth in the applicable Prospectus Supplement to the persons
in whose names the Debt Securities are registered at the close of business on
the related record date and will be paid, at the option of the Company, by wire
transfer or by checks mailed to such persons (Sections 2.7 and 3.1).
If the Debt Securities are issued as Original Issue Discount
Securities (bearing no interest or interest at a rate which at the time of
issuance is below market rates) to be sold at a substantial discount below
their stated principal amount, the material United States federal income tax
consequences and other special considerations applicable to such Original Issue
Discount Securities will be generally described in the applicable Prospectus
Supplement.
If any Debt Securities are sold for any foreign currency or currency
unit or if the principal of, or premium, if any, or interest, if any, on, any
Debt Securities is payable in any foreign currency or currency unit, the
restrictions, elections, tax consequences, specific terms and other information
with respect to such Debt Securities and such foreign currency or currency unit
will be set forth in the Prospectus Supplement relating thereto.
Unless otherwise described in the applicable Prospectus Supplement,
there are no covenants or provisions contained in the Indenture which afford
the holders of the Debt Securities protection in the event of a highly-
leveraged transaction involving the Company.
Book-Entry System
If so specified in the applicable Prospectus Supplement, Debt
Securities of any series may be issued under a book-entry system in the form of
one or more global securities (each a "Global Security"). Each Global Security
will be deposited with, or on behalf of, a depositary, which, unless otherwise
specified in the applicable Prospectus Supplement, will be The Depository Trust
Company, New York, New York (the "Depositary"). The Global Securities will be
registered in the name of the Depositary or its nominee.
The Depositary has advised the Company that the Depositary is a
limited purpose trust company organized under the laws of the State of New
York, a "banking organization" within the meaning of the New York banking law,
a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. The
Depositary was created to hold securities of its participants and to facilitate
the clearance and settlement of securities transactions among its participants
through electronic book-entry changes in accounts of the participants, thereby
eliminating the need for physical movement of securities certificates. The
Depositary's participants include securities brokers and dealers, banks, trust
companies, clearing corporations and certain other organizations, some of which
(and/or representatives of which) own the Depositary. Access to the
Depositary's book-entry system is also available to others, such as banks,
brokers, dealers and trust companies that clear through or maintain a custodial
relationship with a participant, either directly or indirectly.
Upon the issuance of a Global Security, the Depositary will credit,
on its book-entry registration and transfer system, the respective principal
amounts of the Debt Securities represented by such Global Security to the
accounts of participants. The accounts to be credited will be designated by
the underwriters, dealers or agents, if any, or by the Company, if such Debt
Securities are offered and sold directly by the Company. Ownership of
beneficial interests in a Global Security will be limited to participants or
persons that may hold interests through participants. Ownership of beneficial
interests by participants in a Global Security will be shown on, and the
transfer of that ownership interest will be effected only through, records
maintained by the Depositary or its nominee (with respect to interests of
participants) and on the records of participants (with respect to interests of
persons other than participants). The laws of some jurisdictions may require
that certain purchasers of securities take physical delivery of such securities
in certificated form. Such laws may impair the ability to transfer beneficial
interests in a Global Security.
So long as the Depositary or its nominee is the registered owner of a
Global Security, the Depositary or such nominee, as the case may be, will be
considered the sole owner or holder of the Debt Securities represented by such
Global Security for all purposes under the Indenture. Except as set forth
below, owners of beneficial interests in such Global Security will not be
entitled to have the Debt Securities represented thereby registered in their
names, will not receive or be entitled to receive physical delivery of
certificates representing the Debt Securities and will not be considered the
owners or holders thereof under the Indenture. Accordingly, each person owning
a beneficial interest in such Global Security must rely on the procedures of
the Depositary and, if such person is not a participant, on the procedures of
the participant through which such person owns its interest, to exercise any
rights of a holder under the Indenture.
Payment of principal of, and premium, if any, and interest, if any,
on, Debt Securities represented by a Global Security will be made to the
Depositary or its nominee, as the case may be, as the registered owner and
holder of the Global Security representing such Debt Securities. None of the
Company, the Trustee, any paying agent or registrar for such Debt Securities
will have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests in a
Global Security or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
The Company expects that the Depositary or its nominee, as the case
may be, upon receipt of any payment of principal, premium or interest in
respect of a Global Security, will immediately credit participants' accounts
with payments in amounts proportionate to their respective beneficial interests
in the principal amount of such Global Security as shown on the records of the
Depositary or its nominee. The Company also expects that payments by
participants to owners of beneficial interests in such Global Security held
through such participants will be governed by standing instructions and
customary practices, as is now the case with securities held for the accounts
of customers registered in "street name," and will be the responsibility of
such participants.
A Global Security may not be transferred except as a whole by the
Depositary to its nominee or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or its nominee to a
successor of the Depositary or a nominee of such successor. If the Depositary
for a Global Security is at any time unwilling or unable to continue as
depositary and a successor depositary is not appointed by the Company within 90
days, the Company will issue Debt Securities in certificated form in exchange
for all of the Global Securities representing such Debt Securities. In
addition, the Company may at any time and in its sole discretion determine not
to have any Debt Securities represented by one or more Global Securities and,
in such event, will issue Debt Securities in certificated form in exchange for
all of the Global Securities representing such Debt Securities. Further, if
the Company so specifies with respect to the Debt Securities of a series, an
owner of a beneficial interest in a Global Security representing Debt
Securities of such series may, on terms acceptable to the Company and the
Depositary, receive Debt Securities of such series in certificated form. In
any such instance, an owner of a beneficial interest in a Global Security will
be entitled to physical delivery in certificated form of Debt Securities of the
series represented by such Global Security equal in principal amount to such
beneficial interest and to have such Debt Securities registered in its name
(Section 2.8).
Certain Restrictions on the Company
Limitations on Liens
So long as any Debt Securities remain outstanding, the Company
covenants that it will not, nor will it permit any Domestic Subsidiary to,
incur, issue, assume or guarantee any Debt secured by any Mortgage on any
Principal Property, or upon shares of stock or Debt of any Domestic Subsidiary,
without effectively providing that the Debt Securities 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 restrictions shall not apply to Debt secured by:
(i) Mortgages on property, shares of stock or Debt of any
corporation existing at the time such corporation became a Domestic
Subsidiary or merged or consolidated with or into the Company or any of
its Subsidiaries, or arising thereafter pursuant to contractual
commitments entered into prior to and not in contemplation of such
corporation's becoming a Domestic Subsidiary or merging or
consolidating with or into the Company or any of its Subsidiaries;
(ii) Mortgages in favor of the Company or any Domestic Subsidiary;
(iii) Mortgages in favor of the United States of America or any state
thereof or any political subdivision thereof, or in favor of any
foreign country or any political subdivision thereof, to secure
partial, progress, advance or other payments pursuant to any contract
or statute and any other Mortgages incurred or assumed in connection
with the issuance of any industrial revenue or private activity bonds;
(iv) Mortgages on property, shares of stock or Debt existing at the
time of acquisition thereof or securing all or any portion of the
purchase price thereof or securing all or any portion of the cost of
construction or alteration of or improvement on any property that are
created, or assumed contemporaneously with, or within 120 days after,
such acquisition or completion of such construction or improvement;
(v) Mortgages existing on the first date on which a Debt Security
is authenticated by the Trustee under the Indenture or provided for
under the terms of agreements existing on such date;
(vi) Mortgages securing judgment or appeal bonds in respect of
amounts being contested in good faith pursuant to appropriate
proceedings;
(vii) Mortgages incurred or assumed in connection with taxes,
assessments, governmental changes or claims which are not delinquent or
which are being contested in good faith pursuant to appropriate
proceedings;
(viii) Mortgages arising by operation of law pursuant to Section
107(1) of the federal Comprehensive Environmental Response,
Compensation and Liability Act or any similar state law which do not
secure any single obligation in an amount exceeding $10 million; and
(ix) extensions, renewals or replacements (or successive extensions,
renewals or replacements), as a whole or in part, of any Mortgage
referred to in the foregoing clauses (i) to (viii), inclusive (Section
3.6). See "-- Exempted Debt" below.
Exempted Debt
The Indenture provides that, notwithstanding the foregoing provisions,
the Company may, and may permit Domestic Subsidiaries to, incur, issue, assume
or guarantee Debt secured by Mortgages not excepted as provided above without
equally and ratably securing the Debt Securities; provided, however, that after
so securing such Debt, the aggregate of all such secured Debt plus all
Attributable Debt of the Company and its Domestic Subsidiaries in respect of
sale and leaseback transactions would not exceed 10% of the Company's
Consolidated Net Worth, as set forth in the most recent quarterly balance sheet
of the Company and its consolidated subsidiaries (Section 3.6).
Limitations on Sales and Leasebacks
The Company covenants that it will not, nor will it permit any Domestic
Subsidiary to, enter into any arrangement with any lender or investor providing
for the leasing by the Company or any Domestic Subsidiary for a period,
including renewals, in excess of five years of any Principal Property which has
been or is to be sold or transferred to such lender or investor, unless (i) the
Company or such Domestic Subsidiary could create Debt secured by a Mortgage on
the Principal Property to be leased in an amount equal to the Attributable Debt
in such arrangement without equally and ratably securing the Debt Securities or
(ii) the Company shall apply an amount equal to the greater of the net proceeds
of the sale or the fair market value of the Principal Property at the time of
entering into such arrangement to the retirement or repayment (other than at
maturity or pursuant to a mandatory sinking fund or mandatory redemption
provision) of Funded Debt (defined as indebtedness for money borrowed maturing
more than 12 months after the date of the most recent quarterly balance sheet
of the Company and its consolidated subsidiaries), subject to certain
exceptions set forth in the Indenture (Section 3.7).
Consolidation; Merger; Sale of Assets
The Company covenants that it will not merge or consolidate with any
other corporation or sell or convey all or substantially all of its assets to
any person, unless (i) either the Company shall be the continuing corporation
or the successor corporation or the person which acquires substantially all of
the assets of the Company shall be a corporation or entity organized under the
laws of the United States or any state thereof and shall expressly assume the
obligations of the Company under the Indenture and the Debt Securities and (ii)
the Company or such successor corporation or entity, as the case may be, shall
not, immediately after such merger or consolidation, or such sale or
conveyance, be in default in the performance of any covenants or conditions of
the Indenture (Section 9.1).
Certain Definitions
The term "Attributable Debt" as defined in the Indenture means the
total net amount of rent required to be paid under a lease for the remaining
term of such lease, discounted at the then-current weighted average rate per
annum borne by the Debt Securities then Outstanding compounded semiannually;
provided, however, that for the purposes of limitations on the Company and its
Domestic Subsidiaries there shall not be any Attributable Debt in respect of a
sale and leaseback transaction if (i) such sale and leaseback is entered into
in connection with the issuance of industrial revenue or private activity
bonds; (ii) the sale or transfer of the Principal Property leased pursuant to
such sale and leaseback is made within a specified period after the later of
its acquisition or construction; (iii) the Company or Domestic Subsidiary
applies an amount equal to the net proceeds of the sale or transfer of a
Principal Property leased pursuant to such sale and leaseback to investment in
another Principal Property within one year prior to or subsequent to such sale
or transfer; (iv) such sale and leaseback was entered into prior to the date
the Person entering into such sale and leaseback, if other than the Company,
(a) became a Domestic Subsidiary, (b) was merged into or consolidated with the
Company or a Domestic Subsidiary or (c) sold or otherwise disposed of its
properties substantially as an entirety to the Company or a Domestic
Subsidiary; or (v) such sale and leaseback transaction is entered into between
the Company and a Domestic Subsidiary or between Domestic Subsidiaries.
The term "Consolidated Net Worth" as defined in the Indenture means,
with respect to any Person as of any date, all amounts that would be included
under stockholders' equity on a consolidated balance sheet of such Person
determined in accordance with generally accepted accounting principles.
The term "Debt" as defined in the Indenture means any notes, bonds,
debentures or other indebtedness for money borrowed.
The term "Domestic Subsidiary" as defined in the Indenture means a
subsidiary of the Company other than one which (i) (a) neither transacts any
substantial portion of its business nor regularly maintains any substantial
portion of its fixed assets within the United States, or (b) is engaged
primarily in financing the operations of the Company or its subsidiaries, or
both, outside the United States and (ii) does not own any subsidiary of the
Company other than a subsidiary described in the preceding clause (i).
The term "Mortgage" as defined in the Indenture means any mortgage,
pledge or lien securing any Debt.
The term "Principal Property" as defined in the Indenture means any
manufacturing plant located within the United States which is owned or leased
by the Company or any Domestic Subsidiary, the gross book value of which
exceeds 1 1/2% of the Company's Consolidated Net Worth, other than any such
plant or portion thereof which, in the opinion of the Board of Directors of the
Company, is not of material importance to the total business conducted by the
Company and its subsidiaries as an entirety.
Events of Default
An Event of Default with respect to any series of Debt Securities is
defined in the Indenture as being: (i) default for 30 days in payment of
interest on such series; (ii) default in any payment of the principal of, or
premium, if any, on, any Debt Security of such series either at maturity, upon
redemption, by declaration or otherwise; (iii) default in payment of any
sinking fund installment on any Debt Security of such series; (iv) default by
the Company in the performance of any other of the covenants or agreements with
respect to such series which shall not have been remedied for a period of 90
days after notice; (v) certain events of bankruptcy, insolvency or
reorganization of the Company or (vi) any other Event of Default provided in a
supplemental indenture or resolution of the Board of Directors under which such
series of Debt Securities is issued or in the form of Debt Security for such
series. No Event of Default with respect to any particular series of Debt
Securities necessarily constitutes an Event of Default with respect to any
other series of Debt Securities. In case an Event of Default described in (i),
(ii), (iii), (iv) or (vi) (if such Event of Default described in (iv) or (vi)
is with respect to less than all series of Debt Securities then Outstanding)
above shall occur and be continuing with respect to any series of Debt
Securities, the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Debt Securities of such series then Outstanding (each
such series acting as a separate class) may declare the principal (or, in the
case of discounted Debt Securities, the amount specified in the terms thereof)
of the Debt Securities of such series and the interest accrued thereon, if any,
to be due and payable. In case an Event of Default described in (iv), (v) or
(vi) (if such Event of Default described in (iv) or (vi) is with respect to all
series of Debt Securities then Outstanding) above shall occur and be
continuing, the Trustee or the Holders of not less than 25% in aggregate
principal amount of all Debt Securities then Outstanding (treated as one class)
may declare the principal (or, in the case of discounted Debt Securities, the
amount specified in the terms thereof) of all Outstanding Debt Securities and
the interest accrued thereon, if any, to be due and payable (Section 5.1). Any
Event of Default with respect to a particular series of Debt Securities may be
waived by the Holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of such series (or of all the Outstanding Debt
Securities, as the case may be), except in each case a failure to pay the
principal of, or premium, if any, or interest on, such Debt Security and
subject to certain exceptions set forth in the Indenture (Section 5.10).
The Holders of a majority in principal amount of the Debt Securities of
any series then Outstanding shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee
under the Indenture; provided, that such Holders shall have offered to the
Trustee reasonable indemnity against expenses and liabilities and subject to
certain exceptions set forth in the Indenture (Sections 5.6, 5.9 and 6.2). The
Indenture requires the annual filing by the Company with the Trustee of a
certificate as to the absence of certain defaults under the Indenture (Section
3.5).
Modification of the Indenture
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than 66 2/3% in aggregate
principal amount of the Debt Securities then Outstanding of all series affected
by a supplement to the Indenture (voting as one class), to supplement the
Indenture or any supplemental indenture or modify the rights of the Holders of
the Debt Securities, provided, that no such supplement or modification shall
(i) extend the final maturity of any Debt Security or reduce the principal
amount thereof, reduce the rate or extend the time of payment of interest
thereon, reduce any amount payable on redemption thereof or change the currency
in which the Debt Security is payable, or reduce the amount of an Original
Issue Discount Security payable upon acceleration or the amount provable in
bankruptcy, or impair or affect any Holder's right to institute suit for
payment or right of repayment or (ii) reduce the aforesaid percentage of Debt
Securities of any series, in each case without the consent of the Holders
affected thereby (Section 8.2).
The Indenture also contains provisions permitting the Company and the
Trustee to enter into supplemental indentures without the consent of the
Holders of any series of Debt Securities to (i) convey, transfer, assign,
mortgage or pledge to the Trustee as security for the Debt Securities any
property or assets, (ii) evidence the succession of another corporation to the
Company, subject to and upon compliance with the provisions of the Indenture,
and the assumption by such successor corporation of the covenants, agreements
and obligations in the Debt Securities and in the Indenture, (iii) evidence and
provide for a successor Trustee under the Indenture with respect to one or more
series of Debt Securities, (iv) add to the covenants of the Company, (v) cure
any ambiguity or correct or supplement any provision in the Indenture that may
be defective or (vi) establish the form or terms of Debt Securities of any
series (Section 8.1).
Defeasance
The Indenture provides that the Company, at its option, (i) will be
discharged from all obligations in respect of the Debt Securities of a series
(except for certain obligations to register the transfer or exchange of Debt
Securities, replace stolen, lost or destroyed Debt Securities, maintain paying
agencies and hold moneys for payment in trust) or (ii) need not comply with
certain restrictive covenants of the Indenture described under "-- Certain
Restrictions on the Company," in each case if the Company irrevocably deposits
in trust with the Trustee money, or the equivalent in securities of the
government which issued the currency in which the Debt Securities of any then
outstanding series are denominated or securities issued by government agencies
backed by the full faith and credit of such government, which through the
payment of interest thereon and principal thereof in accordance with their
terms will provide money in an amount sufficient to pay all of the principal of
(including any mandatory redemption payments), and premium, if any, and
interest, if any, on, and repurchase obligations, if any, with respect to, the
Debt Securities of such series, on the dates such payments are due in
accordance with terms of such Debt Securities. To exercise either option, the
Company is required to deliver to the Trustee an opinion of independent tax
counsel (which may be counsel to the Company) to the effect that the deposit
and related defeasance would not cause the holders of Debt Securities of such
series to recognize income, gain or loss for United States federal income tax
purposes. To exercise the option described in clause (i) above, such opinion
must be based on a ruling of the Internal Revenue Service, a regulation of the
Treasury Department or a provision of the Internal Revenue Code (Section 10.3).
Concerning the Trustee
Unless otherwise specified in the applicable Prospectus Supplement, The
Chase Manhattan Bank, N.A. is the Trustee, paying agent and registrar under the
Indenture.
Governing Law
The Indenture and the Debt Securities will be governed by the laws of
the State of New York.
PLAN OF DISTRIBUTION
The Company may sell Debt Securities to or through underwriters or
dealers and also may sell Debt Securities directly to other purchasers or
through agents. Any such underwriter or agent involved in the offer and sale of
Debt Securities will be named in an applicable Prospectus Supplement.
Underwriters may offer and sell Debt Securities at a fixed price or
prices, which may be changed, or from time to time at market prices prevailing
at the time of sale, at prices related to such prevailing market prices or at
negotiated prices. The Company may also offer and sell Debt Securities in
exchange for one or more issues of its outstanding debt securities or
exchangeable or convertible debt securities. The Company also may, from time to
time, authorize underwriters acting as the Company's agents to offer and sell
Debt Securities upon the terms and conditions as shall be set forth in any
Prospectus Supplement. In connection with the sale of Debt Securities,
underwriters may be deemed to have received compensation from the Company in
the form of underwriting discounts or commissions and may also receive
commissions from purchasers of Debt Securities for whom they may act as agent.
Underwriters may sell Debt Securities to or through dealers, and such dealers
may receive compensation in the form of discounts, concessions or commissions
from the underwriters and/or commissions from the purchasers for whom they may
act as agent.
Any underwriting compensation paid by the Company to underwriters or
agents in connection with the offering of Debt Securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers,
will be set forth in an applicable Prospectus Supplement. Underwriters, dealers
and agents participating in the distribution of Debt Securities may be deemed
to be underwriters, and any discounts and commissions received by them and any
profit realized by them on resale of Debt Securities may be deemed to be
underwriting discounts and commissions, under the Securities Act. Underwriters,
dealers and agents may be entitled, under agreements entered into with the
Company, to indemnification against or contribution toward certain civil
liabilities, including liabilities under the Securities Act, and to
reimbursement by the Company for certain expenses.
If so indicated in an applicable Prospectus Supplement, the Company
will authorize underwriters or dealers acting as the Company's agents to
solicit offers by certain institutions to purchase Debt Securities from the
Company pursuant to Delayed Delivery Contracts ("Contracts") providing for
payment and delivery on the date or dates stated in such Prospectus Supplement.
Each Contract will be for an amount not less than, and the aggregate principal
amount of Debt Securities sold pursuant to Contracts shall not be less nor more
than, the respective amounts stated in such Prospectus Supplement. Institutions
with which Contracts, when authorized, may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and other institutions, but in all
cases will be subject to approval of the Company. Contracts will not be subject
to any conditions except (i) the purchase by an institution of the Debt
Securities covered by its contracts shall not at the time of delivery thereof
be prohibited under the laws of any jurisdiction in the United States to which
such institution is subject and (ii) if any Debt Securities are being sold to
underwriters, the Company shall have sold to such underwriters the total
principal amount of Debt Securities less the principal amount thereof covered
by Contracts. Agents and underwriters will have no responsibility in respect
of the delivery or performance of Contracts.
All Debt Securities will be a new issue of securities with no
established trading market. Any underwriters or agents to or through whom Debt
Securities are sold by the Company for public offering and sale may make a
market in such Debt Securities, but such underwriters or agents will not be
obligated to do so and may discontinue any market making at any time without
notice. No assurance can be given as to the liquidity of the trading market for
any Debt Securities.
Certain of the underwriters or agents and their affiliates may engage
in transactions with, and perform services for, the Company in the ordinary
course of business.
LEGAL MATTERS
The validity of the Debt Securities will be passed upon for the Company
by Richard A. Flink, Vice President and General Counsel of the Company, and
Simpson Thacher & Bartlett (a partnership which includes professional
corporations), New York, New York, who will rely as to all matters of New
Jersey law upon the opinion of Mr. Flink. Mr. Flink is paid a salary by the
Company, is a participant in various employee benefit plans offered to
employees of the Company generally and owns and has options to purchase shares
of common stock of the Company.
Certain legal matters in connection with the offering of the Debt
Securities will be passed upon for any underwriters or agents by Davis Polk &
Wardwell, New York, New York, who will rely as to all matters of New Jersey law
upon the opinion of Mr. Flink.
EXPERTS
The consolidated financial statements incorporated by reference in this
Prospectus and elsewhere in the Registration Statement to the extent and for
the periods indicated in their report have been audited by Arthur Andersen LLP,
independent public accountants, and are incorporated herein in reliance upon
the authority of said firm as experts in accounting and auditing.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The Company estimates that expenses in connection with the offering
described in this Registration Statement will be as follows:
Registration fee . . . . . . . . . . . . . . . . . . $ 68,966
Printing and engraving expenses . . . . . . . . . . 55,000
Legal fees and expenses . . . . . . . . . . . . . . 125,000
Accounting fees and expenses . . . . . . . . . . . . 75,000
Rating agency fees and expenses . . . . . . . . . . 180,000
Blue Sky fees and expenses . . . . . . . . . . . . . 10,000
Trustee and registrar fees and expenses . . . . . . 4,500
Miscellaneous . . . . . . . . . . . . . . . . . . . 6,534
Total . . . . . . . . . . . . . . . . . . . . . $525,000
Item 15. Indemnification of Directors and Officers.
The New Jersey Business Corporation Act (the "NJBCA") provides that a
New Jersey corporation has the power to indemnify a director or officer against
his or her expenses and liabilities in connection with any proceeding involving
the director or officer by reason of his or her being or having been such a
director or officer, other than a proceeding by or in the right of the
corporation, if such a director or officer acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the best interests of
the corporation, and with respect to any criminal proceeding, such director or
officer had no reasonable cause to believe his or her conduct was unlawful.
In addition, a New Jersey corporation has the power to indemnify a
director or officer against his or her expenses in connection with any
proceeding by or in the right of the corporation to procure a judgment in its
favor which involves the director or officer by reason of his or her being or
having been such a director or officer, if such director or officer acted in
good faith and in a manner he or she reasonably believed to be in or not
opposed to the best interests of the corporation; such indemnification may be
provided only if and to the extent that the Superior Court of New Jersey (or
other court in which such proceeding was brought) shall determine, in view of
all circumstances, that such director or officer is fairly and reasonably
entitled to indemnification for such expenses.
The NJBCA requires a New Jersey corporation to indemnify directors and
officers against all expenses to the extent that such directors or officers
have been successful on the merits or otherwise in any proceeding involving
such director or officer by reason of his or her having been a director or
officer or in defense of any claim, issue or matter therein.
The indemnification and advancement of expenses permitted or required
by the NJBCA shall not exclude any other rights, including the right to be
indemnified against liabilities and expenses incurred in proceedings by or in
the right of the corporation, to which a director or officer may be entitled
under a certificate of incorporation, by-law, agreement, vote of stockholders,
or otherwise; provided, that no indemnification shall be made to or on behalf
of a director or officer if a judgment or other final adjudication adverse to
the director or officer establishes that his or her acts or omissions (a) were
in breach of his or her duty of loyalty to the corporation or its stockholders,
(b) were not in good faith or involved a knowing violation of law or (c)
resulted in receipt by the director or officer of an improper personal benefit.
The Registrant's Restated Certificate of Incorporation provides that
the corporation shall indemnify its directors, officers and employees in the
manner and to the extent permitted by the laws of the State of New Jersey, and
that directors and officers shall not be personally liable to the corporation
or its stockholders for breach of duty as a director or officer, except to the
extent and for the duration of any period of time such personal liability may
not be eliminated or limited under the NJBCA. In addition, the Registrant's
Restated Certificate of Incorporation provides that, subject to the provisions
of the NJBCA, the directors and committee members appointed by the Board of
Directors shall not be liable in the discharge of their duties when relying in
good faith upon the corporate records of the Registrant and/or competent advice
of any type.
Item 16. Exhibits.
1.1 Form of Underwriting Agreement<F1>
3.1 Restated Certificate of Incorporation of C. R. Bard, Inc.<F1>
4.1 Form of Indenture between C. R. Bard, Inc. and The Chase Manhattan
Bank, N.A., as trustee<F1>
4.2 Form of Debt Securities<F1>
5.1 Opinion of Richard A. Flink, Esq., regarding legality of securities
being registered<F1>
12.1 Computation of Ratio of Earnings to Fixed Charges<F1>
23.1 Consent of Arthur Andersen LLP<F1>
23.2 Consent of Richard A. Flink, Esq. (included in Exhibit 5.1)
24.1 Power of Attorney<F1>
25.1 Statement of Eligibility and Qualification of Trustee on Form T-1<F1>
[FN]
_________________
<F1> Filed herewith
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made
of the securities registered hereby, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum offering
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (1) (i) and (1) (ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Commission by the registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference
in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the provisions described under Item 15 above, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Borough of New Providence at Murray Hill, State of New
Jersey, on June 13, 1996.
C. R. BARD, INC.
By: /s/ William H. Longfield
_________________________________________
Name: William H. Longfield
Title: Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed on June 13, 1996 by or on behalf of the
following persons in the capacities indicated.
Signature Title
/s/ William H. Longfield Chairman and Chief Executive
_____________________________________ Officer and Director (Principal
William H. Longfield Executive Officer)
* Executive Vice President and Chief
_____________________________________ Financial Officer and Director
William C. Bopp (Principal Financial Officer)
* Vice President and Controller
_____________________________________ (Principal Accounting Officer)
Charles P. Grom
* President and Chief Operating
_____________________________________ Officer and Director
Benson F. Smith
* Director
_____________________________________
Joseph F. Abely, Jr.
* Director
_____________________________________
William T. Butler, M.D.
* Director
_____________________________________
Raymond B. Carey, Jr.
* Director
_____________________________________
Daniel A. Cronin, Jr.
* Director
_____________________________________
T. Kevin Dunnigan
* Director
_____________________________________
Regina E. Herzlinger
* Director
_____________________________________
Robert P. Luciano
* Director
_____________________________________
Robert H. McCaffrey
*By: /s/ William H. Longfield
_____________________________
William H. Longfield
Attorney-In-Fact
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Exhibits
<S> <C>
1.1 Form of Underwriting Agreement<F1>
3.1 Restated Certificate of Incorporation of C. R. Bard, Inc.<F1>
4.1 Form of Indenture between C. R. Bard, Inc. and The Chase
Manhattan Bank, N.A., as trustee<F1>
4.2 Form of Debt Securities<F1>
5.1 Opinion of Richard A. Flink, Esq., regarding legality of
securities being registered<F1>
12.1 Computation of Ratio of Earnings to Fixed Charges<F1>
23.1 Consent of Arthur Andersen LLP<F1>
23.2 Consent of Richard A. Flink, Esq. (included in Exhibit 5.1)
24.1 Power of Attorney<F1>
25.1 Statement of Eligibility and Qualification of Trustee on
Form T-1<F1>
</TABLE>
[FN]
_________________
<F1> Filed herewith
EXHIBIT 1.1
C. R. BARD, INC.
DEBT SECURITIES
Underwriting Agreement
_____________, 19__
To the Representatives named
in Schedule I hereto of the
Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
C. R. Bard, Inc., a New Jersey corporation (the "Company"), proposes to
issue and sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its debt securities identified in
Schedule I hereto (the "Securities"), to be issued under the indenture
specified in Schedule I hereto (the "Indenture") between the Company and the
Trustee identified in such Schedule (the "Trustee"). If the firm or firms
listed in Schedule II hereto include only the firm or firms listed in Schedule
I hereto as Representatives, then the terms "Underwriters" and
"Representatives", as used herein, shall each be deemed to refer to such firm
or firms.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement (the file number of which is set forth in Schedule I hereto) on Form
S-3, relating to certain debt securities (the "Shelf Securities") to be issued
from time to time by the Company. The Company also has filed with, or proposes
to file with, the Commission pursuant to Rule 424 under the Securities Act a
prospectus supplement specifically relating to the Securities. The
registration statement as amended to the date of this Agreement is hereinafter
referred to as the "Registration Statement" and the related prospectus covering
the Shelf Securities in the form first used to confirm sales of the Securities
is hereinafter referred to as the "Basic Prospectus". The Basic Prospectus as
supplemented by the prospectus supplement specifically relating to the
Securities in the form first used to confirm sales of the Securities (the
"Prospectus Supplement") is hereinafter referred to as the "Prospectus". Any
reference in this Agreement to the Registration Statement, the Basic
Prospectus, any preliminary form of Prospectus (a "preliminary prospectus")
previously filed with the Commission pursuant to Rule 424 or the Prospectus
shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Securities Act which were
filed under the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Exchange Act"), on
or before the date of this Agreement or the date of the Basic Prospectus, any
preliminary prospectus or the Prospectus, as the case may be; and any reference
to "amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any preliminary prospectus or the Prospectus
shall be deemed to refer to and include any documents filed under the Exchange
Act after the date of this Agreement, or the date of the Basic Prospectus, any
preliminary prospectus or the Prospectus, as the case may be, which are deemed
to be incorporated by reference therein.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the
several Underwriters as hereinafter provided, and each Underwriter, on the
basis of the representations and warranties herein contained, but subject to
the conditions hereinafter stated, agrees to purchase, severally and not
jointly, from the Company the respective principal amount of Securities set
forth opposite such Underwriter's name in Schedule II hereto at the purchase
price set forth in Schedule I hereto plus accrued interest, if any, from the
date specified in Schedule I hereto to the date of payment and delivery.
2. The Company understands that the several Underwriters intend
(i) to make a public offering of their respective portions of the Securities
and (ii) initially to offer the Securities upon the terms set forth in the
Prospectus.
3. Payment for the Securities shall be made by wire transfer in
immediately available funds to the account specified by the Company to the
Representatives, no later than noon the Business Day (as defined below) prior
to the Closing Date (as defined below), on the date and at the time and place
set forth in Schedule I hereto (or at such other time and place on the same or
such other date, not later than the fifth Business Day thereafter, as you and
the Company may agree in writing). As used herein, the term "Business Day"
means any day other than a day on which banks are permitted or required to be
closed in New York City. The time and date of such payment and delivery with
respect to the Securities are referred to herein as the "Closing Date".
Payment for the Securities shall be made against delivery to the
nominee of The Depository Trust Company for the respective accounts of the
several Underwriters of the Securities of one or more global securities (the
"Global Security") representing the Securities registered in such names and in
such denominations as you shall request not later than two full Business Days
prior to the Closing Date, with any transfer taxes payable in connection with
the transfer to the Underwriters of the Securities duly paid by the Company.
The Global Security will be made available for inspection by the
Representatives at the office of the Trustee specified in Schedule I, not later
than 1:00 P.M., New York City time, on the Business Day prior to the Closing
Date.
4. The Company represents and warrants to each Underwriter that:
(a) the Registration Statement has been declared effective
by the Commission under the Securities Act; no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge
of the Company, threatened by the Commission; and the Registration
Statement and Prospectus (as amended or supplemented if applicable)
conform or will conform, as the case may be, in all material respects
to the requirements of the Securities Act, and do not and will not, as
of the applicable effective date as to the Registration Statement and
any amendment thereto and as of the date of the Prospectus and any
amendment or supplement thereto, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, and the
Prospectus, as amended or supplemented at the Closing Date, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; except that the foregoing representations and warranties
shall not apply to (i) that part of the Registration Statement which
constitutes the Statement of Eligibility and Qualification (Form T-1)
under the Trust Indenture Act of the Trustee, and (ii) statements or
omissions in the Registration Statement or the Prospectus made in
reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use therein;
(b) the documents incorporated by reference in the
Prospectus, when they were filed with the Commission, conformed in all
material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and none of such documents, when they were
filed with the Commission, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when such
documents are filed with the Commission, will conform in all material
respects to the requirements of the Securities Act or the Exchange Act,
as applicable, and the rules and regulations thereunder and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(c) the financial statements, and the related notes
thereto, included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the consolidated financial
position of the Company and its consolidated subsidiaries as of the
dates indicated and the results of their operations and the changes in
their consolidated cash flows for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis, and the supporting
schedules included or incorporated by reference in the Registration
Statement, if any, present fairly the information required to be stated
therein;
(d) since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been any material adverse change, or any development involving a
prospective material adverse change, in or affecting the business,
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, taken as a whole, otherwise than as
set forth or contemplated in the Prospectus; and except as set forth or
contemplated in the Prospectus neither the Company nor any of its
subsidiaries has entered into any transaction or agreement (whether or
not in the ordinary course of business) material to the Company and its
subsidiaries taken as a whole;
(e) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in
the Prospectus, and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, other than
where the failure to be so qualified or in good standing would not have
a material adverse effect on the business, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole (a "Material Adverse Effect");
(f) each of the Company's subsidiaries that constitutes a
"Significant Subsidiary" within the meaning of Rule 1-02 of Regulation
S-X of the Commission (the "Material Subsidiaries") has been duly
incorporated and is validly existing as a corporation under the laws of
its jurisdiction of incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as presently
conducted, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, other than where the
failure to be so qualified or in good standing would not have a
Material Adverse Effect; and all the outstanding shares of capital
stock of each Material Subsidiary have been duly authorized and validly
issued, are fully-paid and non-assessable, and (except in the case of
foreign subsidiaries, for directors' qualifying shares) are owned by
the Company, directly or indirectly, free and clear of all liens,
encumbrances, security interests and claims;
(g) this Agreement has been duly authorized, executed and
delivered by the Company;
(h) the Securities have been duly authorized, and, when
issued and delivered against payment therefor pursuant to this
Agreement, will have been duly executed, authenticated, issued and
delivered and will constitute valid and binding obligations of the
Company entitled to the benefits provided by the Indenture; the
Indenture has been duly authorized and upon effectiveness of the
Registration Statement will have been duly qualified under the Trust
Indenture Act of 1939, as amended, and the rules and regulations of the
Commission thereunder (the "Trust Indenture Act") and, when executed
and delivered by the Company and authorized, executed and delivered by
the Trustee, the Indenture will constitute a valid and binding
instrument of the Company; and the Securities and the Indenture conform
or will conform, as the case may be, to the descriptions thereof in the
Prospectus;
(i) neither the Company nor any of its Material
Subsidiaries is, or with the giving of notice or lapse of time or both
would be, in violation of or in default under, its certificate of
incorporation or by-laws or any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company or
any of its Material Subsidiaries is a party or by which it or any of
them or any of their respective properties is bound, except for
violations and defaults which individually and in the aggregate would
not have a Material Adverse Effect and, in the reasonable judgment of
the Company, are not material to the holders of the Securities; the
issue and sale of the Securities and the performance by the Company of
its obligations under the Securities, the Indenture and this Agreement
and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its Material Subsidiaries is
a party or by which the Company or any of its Material Subsidiaries is
bound or to which any of the property or assets of the Company or any
of its Material Subsidiaries is subject, except for conflicts, breaches
or defaults that individually and in the aggregate would not have a
Material Adverse Effect, nor will any such action result in any
violation of the provisions of the Certificate of Incorporation or the
By-Laws of the Company or, except for violations that individually and
in the aggregate would not have a Material Adverse Effect, any
applicable law or statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company,
its subsidiaries or any of their respective properties; and no consent,
approval, authorization, order, license, registration or qualification
of or with any such court or governmental agency or body is required
for the issue and sale of the Securities or the consummation by the
Company of the transactions contemplated by this Agreement or the
Indenture, except such consents, approvals, authorizations, orders,
licenses, registrations or qualifications as have been obtained under
the Securities Act, the Trust Indenture Act and as may be required
under state securities or Blue Sky Laws in connection with the purchase
and distribution of the Securities by the Underwriters;
(j) other than as set forth or contemplated in the
Prospectus, there are no legal or governmental suits or proceedings
pending or, to the knowledge of the Company, threatened, to which the
Company or any of its Material Subsidiaries is or may be a party or to
which any property of the Company or any of its Material Subsidiaries
is or may be the subject in which there is a reasonable possibility of
an adverse decision which could individually or in the aggregate have,
a Material Adverse Effect, and there are no contracts or other
documents that are required to be filed as an exhibit to the
Registration Statement or required to be described in the Registration
Statement or the Prospectus which are not filed or described as
required;
(k) Arthur Andersen LLP who have certified certain
financial statements of the Company and its subsidiaries are
independent public accountants as required by the Securities Act;
(l) the Company is not and, after giving effect to the
offering and sale of the Securities, will not be an "investment
company" as defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act");
(m) the Company has complied with all provisions of
Section 517.075, Florida Statutes (Chapter 92-198, Laws of Florida)
relating to doing business with the Government of Cuba or with any
person or affiliate located in Cuba;
(n) each of the Company and its subsidiaries owns,
possesses or has obtained all licenses, permits, certificates,
consents, orders, approvals and other authorizations from, and has made
all declarations and filings with, all federal, state, local and other
governmental authorities (including foreign regulatory agencies), all
self-regulatory organizations and all courts and other tribunals,
domestic or foreign, necessary to own or lease, as the case may be, and
to operate its properties and to carry on its business as conducted as
of the date hereof, with such exceptions as do not have a Material
Adverse Effect, and neither the Company nor any such subsidiary has
received any actual notice of any proceeding relating to revocation or
modification of any such license, permit, certificate, consent, order,
approval or other authorization, which individually and in the
aggregate, if the subject of an unfavorable decision, ruling or finding
would have a Material Adverse Effect, except as described in the
Registration Statement and the Prospectus; and each of the Company and
its subsidiaries is in compliance with all laws and regulations
relating to the conduct of its business as conducted as of the date
hereof, with such exceptions as do not have a Material Adverse Effect;
(o) each of the Company and its subsidiaries owns or
possesses the right to use the patents, patent licenses, trademarks,
service marks, trade names, copyrights and know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures, collectively, the
"Intellectual Property") reasonably necessary to carry on the business
conducted by each as conducted on the date hereof, except to the extent
that the failure to own or possess the right (through license or
otherwise) to use such Intellectual Property could not, singly or in
the aggregate, reasonably be expected to have a Material Adverse
Effect, and, except as set forth or contemplated in the Registration
Statement and the Prospectus, neither the Company nor any subsidiary
has received any notice of infringement of asserted rights of others
with respect to any Intellectual Property, except for notices the
content of which if accurate could not, singly or in the aggregate,
reasonably be expected to have a Material Adverse Effect;
(p) the Company and its subsidiaries (i) are in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are
in compliance with all terms and conditions of any such permit, license
or approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a
Material Adverse Effect; and the Company has reasonably concluded that
any capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit, license
or approval, any related constraints on operating activities and any
potential liabilities to third parties would not, singly or in the
aggregate, have a Material Adverse Effect.
5. The Company covenants and agrees with each of the several
Underwriters as follows:
(a) to file the Prospectus in a form reasonably approved
by you pursuant to Rule 424 under the Securities Act not later than the
Commission's close of business on the second Business Day following the
date of determination of the offering price of the Securities or, if
applicable, such earlier time as may be required by Rule 424(b);
(b) to deliver to each Representative and counsel for the
Underwriters, at the expense of the Company, a conformed copy of the
Registration Statement (as originally filed) and each amendment
thereto, in each case including exhibits and documents incorporated by
reference therein and, during the period mentioned in paragraph (e)
below, to each of the Underwriters as many copies of the Prospectus
(including all amendments and supplements thereto) and documents
incorporated by reference therein as you may reasonably request;
(c) from the date hereof and prior to the Closing Date, to
furnish to you a copy of any proposed amendment or supplement to the
Registration Statement or the Prospectus, for your review, and not to
file any such proposed amendment or supplement (other than one
resulting from the filing of any document under the Exchange Act which
you were afforded a reasonable opportunity, in the light of the
circumstances in which any such filing is made, to comment upon) to
which you reasonably object;
(d) to file promptly all reports and any definitive proxy
or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities, and during such
same period, to advise you promptly (i) when any amendment to the
Registration Statement shall have become effective, (ii) of any request
by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectus or for any additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation or threatening of any proceeding for that purpose, and (iv)
of the receipt by the Company of any notification with respect to any
suspension of the qualification of the Securities for offer and sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose; and to use its best efforts to prevent the issuance of
any such stop order or notification and, if issued, to obtain as soon
as possible the withdrawal thereof;
(e) if, during such period after the first date of the
public offering of the Securities as in the opinion of counsel for the
Underwriters a prospectus relating to the Securities is required by law
to be delivered in connection with sales by an Underwriter or dealer,
any event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement
the Prospectus to comply with law, forthwith to prepare and furnish, at
the expense of the Company, to the Underwriters and to the dealers
(whose names and addresses you will furnish to the Company) to which
Securities may have been sold by you on behalf of the Underwriters and
to any other dealers upon request, such amendments or supplements to
the Prospectus as may be necessary so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with law;
(f) to endeavor to qualify the Securities for offer and
sale under the securities or Blue Sky laws of such U.S. jurisdictions
as you shall reasonably request and to continue such qualification in
effect so long as reasonably required for distribution of the
Securities and to pay all fees and expenses (including the reasonable
fees and disbursements of counsel to the Underwriters) reasonably
incurred in connection with such qualification and in connection with
the determination of the eligibility of the Securities for investment
under the laws of such jurisdictions as you may designate; provided
that the Company shall not be required to file a general consent to
service of process in any jurisdiction or to qualify as a foreign
corporation in any jurisdiction;
(g) to make generally available to its security holders
and to you as soon as practicable an earnings statement covering a
period of at least twelve months beginning with the first fiscal
quarter of the Company occurring after the effective date of the
Registration Statement, which shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 of the Commission promulgated
thereunder;
(h) so long as the Securities are outstanding, to furnish
to the first of the named Representatives on Schedule I hereto, upon
request, copies of all reports or other communications (financial or
other) furnished to holders of Securities, and copies of any reports
and financial statements furnished to or filed with the Commission or
any national securities exchange;
(i) during the period beginning on the date hereof and
continuing to and including the Business Day following the Closing
Date, not to offer, sell, contract to sell or otherwise dispose of any
debt securities of or guaranteed by the Company which are substantially
similar to the Securities without the prior written consent of the
first of the named Representatives on Schedule I hereto; and
(j) whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all costs and expenses incident to the performance of
its obligations hereunder, including without limiting the generality of
the foregoing, (i) all costs and expenses incident to the preparation,
issuance, execution, authentication and delivery of the Securities,
including any fees or expenses of the Trustee payable by the Company
pursuant to any agreement between the Company and the Trustee, (ii) all
costs and expenses incident to the preparation, printing and filing
under the Securities Act of the Registration Statement, the Prospectus
and any preliminary prospectus (including in each case all exhibits,
amendments and supplements thereto), (iii) all costs and expenses
incurred in connection with the registration or qualification and
determination of eligibility for investment of the Securities under the
laws of such U.S. jurisdictions as the Underwriters may designate
(including the reasonable fees of counsel for the Underwriters and
their disbursements), (iv) all costs and expenses in connection with
the listing of the Securities on any stock exchange, (v) filing fees
related to any filing with National Association of Securities Dealers,
Inc., (vi) all costs and expenses in connection with the duplication
and delivery of this Agreement, the Indenture, the Preliminary and
Supplemental Blue Sky Memoranda and any Legal Investment Survey and the
furnishing to Underwriters and dealers of copies of the Registration
Statement and the Prospectus, including mailing and shipping, as herein
provided, (vii) all costs and expenses payable to rating agencies in
connection with the rating of the Securities, (viii) any expenses
incurred by the Company in connection with a "road show" presentation
to potential investors and (ix) the cost and charges of any transfer
agent.
6. The several obligations of the Underwriters hereunder shall be
subject to the following conditions:
(a) the representations and warranties of the Company
contained herein are true and correct on and as of the Closing Date as
if made on and as of the Closing Date and the Company shall have
complied in all material respects with all agreements and all
conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date;
(b) the Prospectus shall have been filed with the
Commission pursuant to Rule 424 within the applicable time period
prescribed for such filing by the rules and regulations under the
Securities Act; no stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for such
purpose shall be pending before or threatened by the Commission; and
all requests for additional information on the part of the Commission
made subsequent to the execution and delivery of this Agreement and
prior to the Closing shall have been complied with to your
satisfaction;
(c) subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, there shall not have occurred
any downgrading, nor shall any notice have been given of (i) any
downgrading or (ii) any intended or potential downgrading in the
rating accorded any securities of or guaranteed by the Company by any
"nationally recognized statistical rating organization", as such term
is defined for purposes of Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is
given in the Prospectus there shall not have been any material adverse
change, or any development involving a material adverse change, in or
affecting the business, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, taken as a
whole, otherwise than as set forth or contemplated in the Prospectus,
the effect of which in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated
in the Prospectus;
(e) the Representatives shall have received on and as of
the Closing Date one or more certificates of an executive officer of
the Company, reasonably satisfactory to you, to the effect set forth in
subsections (a) through (c) (with respect to the respective
representations, warranties, agreements and conditions of the Company)
of this Section and to the further effect that there has not occurred
any material adverse change, or any development involving a prospective
material adverse change, in or affecting the business, financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries, taken as a whole, from that set forth or
contemplated in the Registration Statement or, in the event that there
has been such a change or development, identifying the same.
(f) (1) Simpson Thacher & Bartlett, counsel for the Company,
shall have furnished to you their written opinion, dated the Closing
Date, in form and substance reasonably satisfactory to you, to the
effect that:
(i) the Indenture has been duly authorized, executed
and delivered by the Company and duly qualified under the Trust
Indenture Act and, assuming due authorization, execution and
delivery thereof by the Trustee, constitutes a valid and
legally binding obligation of the Company;
(ii) the Securities have been duly authorized,
executed and issued by the Company and, assuming due
authentication thereof by the Trustee and upon payment and
delivery in accordance with this Agreement, will constitute
valid and legally binding obligations of the Company entitled
to the benefits of the Indenture;
(iii) the statements made in the Prospectus under the
captions "Description of Debt Securities" and "Description of
[Notes]," insofar as they purport to constitute summaries of
certain terms of documents referred to therein, constitute
accurate summaries of the terms of such documents in all
material respects; and
(iv) this Agreement has been duly authorized, executed
and delivered by the Company.
Such counsel may state that their opinions set forth in clauses
(i) and (ii) above are subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) an implied
covenant of good faith and fair dealing.
Such counsel shall state that they are of the opinion that the
Registration Statement (or, if applicable, the Registration Statement as
amended by any post-effective amendment prior to the Closing Date), as of its
effective date, and the Prospectus, as of the date of the Prospectus
Supplement, complied as to form in all material respects with the requirements
of the Securities Act and the Trust Indenture Act and that the Company's most
recent Annual Report on Form 10-K and each other document, if any, filed by the
Company with the Commission under the Exchange Act subsequent to the end of the
fiscal year covered by such Annual Report and incorporated by reference or
deemed to be incorporated by reference in the Prospectus (the "Exchange Act
Documents") complied as to form when filed in all material respects with the
requirements of the Exchange Act, except that such counsel need not express an
opinion with respect to financial statements or other financial data.
In passing on the form of the Registration Statement (or, if
applicable, the Registration Statement as amended by any post-effective
amendment prior to the Closing Date), the Prospectus and the Exchange Act
Documents, such counsel may state that they have not independently verified the
accuracy, completeness or fairness of the statements made or included therein
and take no responsibility therefor (except as and to the extent set forth in
clause (iii) above) and that such opinion is based upon such counsel's
examination of the Registration Statement (or, if applicable, the Registration
Statement as amended by any post-effective amendment prior to the Closing
Date), the Prospectus and the Exchange Act Documents, their investigation made
in connection with the preparation of the Registration Statement (or, if
applicable, the Registration Statement as amended by any post-effective
amendment prior to the Closing Date) and the Prospectus (excluding the Exchange
Act Documents) and their participation in conferences with certain officers and
employees of the Company, with representatives of Arthur Andersen, with the
General Counsel of the Company and any others referred to in such opinion;
subject to the same qualifications, such counsel shall also state that they
have no reason to believe that the Registration Statement (or, if applicable,
the Registration Statement as amended by any post-effective amendment prior to
the Closing Date), as of its effective date (including the Exchange Act
Documents on file with the Commission on such effective date or, if the Company
has filed an Annual Report on Form 10-K with the Commission subsequent to such
effective date, as of the date of filing of such Annual Report, in which case
Exchange Act Documents shall mean such Annual Report and the Exchange Act
Documents on file with the Commission on the date of filing of such Annual
Report), contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary in order to make
the statements therein not misleading or that the Prospectus (including the
Exchange Act Documents) contains any untrue statement of a material fact or
omits to state any material fact necessary in order to make the statements
therein, in the light of circumstances under which they were made, not
misleading, except that in each case, such counsel need not express a belief
with respect to financial statements or other financial data.
In rendering such opinion, such counsel may rely as to certain
matters of fact on certificates of officers of the Company and of public
officials and may state that they express no opinion as to the laws of any
jurisdiction other than the federal law of the United States, the laws of the
State of New York and, to the extent set forth therein, the laws of the State
of New Jersey. Insofar as the opinions of such counsel relate to or are
dependent upon matters governed by the laws of the State of New Jersey, such
counsel may rely upon the opinion of Mr. Flink referred to below.
(2) Richard A. Flink, Esq., Vice President and General Counsel
of the Company, shall have furnish to you his written opinion, dated the
Closing Date, in form and substance reasonable satisfactory to you, to the
effect that;
(i) the Company has been duly incorporated and
is validly existing and in good standing as a
corporation in good standing under the laws of its
jurisdiction of incorporation, with power and
authority (corporate and other) to own its properties
and conduct its business as described in the
Prospectus;
(ii) the Company has been duly qualified as a
foreign corporation for the transaction of business
and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such
qualification, other than where the failure to be so
qualified or in good standing would not have a
Material Adverse Effect;
(iii) each of the Company's Material
Subsidiaries has been duly incorporated and is validly
existing as a corporation under the laws of its
jurisdiction of incorporation with power and authority
(corporate and other) to own its properties and
conduct its business as presently conducted, and has
been duly qualified as a foreign corporation for the
transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns
or leases properties, or conducts any business, so as
to require such qualification, other than where the
failure to be so qualified or in good standing would
not have a Material Adverse Effect and all of the
outstanding shares of capital stock of each Material
Subsidiary have been duly and validly authorized and
issued, are fully paid and non-assessable, and (except
in the case of foreign subsidiaries, for directors'
qualifying shares) are owned directly or indirectly by
the Company, free and clear of all liens,
encumbrances, equities or claims;
(iv) to the best of such counsel's knowledge,
other than as set forth or contemplated in the
Prospectus, there are no legal or governmental suits
or proceedings pending or threatened to which the
Company or any of its Material Subsidiaries is or may
be a party or to which any property of the Company or
its Material Subsidiaries is or may be the subject in
which there is a reasonable possibility of an adverse
decision which could, individually or in the
aggregate, have a Material Adverse Effect, and such
counsel does not know of any contracts or other
documents that are required to be filed as an exhibit
to the Registration Statement or required to be
described in the Registration Statement or the
Prospectus which are not filed or described as
required;
(v) this Agreement has been duly authorized,
executed and delivered by the Company;
(vi) the Securities have been duly
authorized, executed and issued by the Company and,
assuming due authentication thereof by the Trustee and
upon payment and delivery in accordance with this
Agreement, will constitute valid and legally binding
obligations of the Company entitled to the benefits of
the Indenture;
(vii) the Indenture has been duly authorized,
executed and delivered by the Company and duly
qualified under the Trust Indenture Act, and, assuming
due authorization, execution and delivery thereof by
the Trustee, constitutes a valid and legally binding
obligation of the Company;
(viii) neither the Company nor any of its
Material Subsidiaries is, or with the giving of notice
or lapse of time or both would be, in violation of or
in default under, its certificate of incorporation or
by-laws or any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known
to such counsel to which the Company or any of its
Material Subsidiaries is a party or by which it or any
of them or any of their respective properties is
bound, except for violations and defaults which
individually and in the aggregate would not have a
Material Adverse Effect; the issue and sale of the
Securities and the performance by the Company of its
obligations under the Securities, the Indenture and
this Agreement and the consummation of the
transactions herein and therein contemplated will not
conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument known to such counsel
to which the Company or any of its Material
Subsidiaries is a party or by which the Company or any
of its Material Subsidiaries is bound or to which any
of the property or assets of the Company or any of its
Material Subsidiaries is subject, except for
conflicts, breaches or defaults which individually and
in the aggregate would not have a Material Adverse
Effect, nor will any such action result in any
violation of the provisions of the Certificate of
Incorporation or the By-Laws of the Company or, except
for violations that individually and in the aggregate
would not have a Material Adverse Effect, any
applicable law or statute or any order, rule or
regulation, known to such counsel, of any court or
governmental agency or body having jurisdiction over
the Company, its Material Subsidiaries or any of their
respective properties;
(ix) no consent, approval, authorization,
order, license, registration or qualification of or
with any such court or governmental agency or body is
required for the issue and sale of the Securities or
the consummation by the Company of the other
transactions contemplated by this Agreement or the
Indenture, except such consents, approvals, author-
izations, orders, licenses, registrations or
qualifications as have been obtained under the
Securities Act and the Trust Indenture Act and as may
be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the
Securities by the Underwriters;
(x) the statements in the Prospectus under
the captions "Description of Debt Securities",
"Description of Notes", in the Prospectus incorporated
by reference from Item 3 of Part 1 of the Company's
most recent Annual Report on Form 10-K, in the
Prospectus incorporated by reference from Item 1 of
Part II of the Company's Quarterly Reports on Form 10-
Q, if any, filed since such Annual Report, [in the
Prospectus incorporated by reference from Item 5 of
the Company's Current Reports on Form 8-K, if any,
filed since such Annual Report], and in the
Registration Statement in Item 15, insofar as such
statements purport to constitute summaries of the
legal matters, documents or proceedings referred to
therein, constitute accurate summaries of such legal
matters, documents or proceedings in all material
respects;
(xi) the Company is not and, after giving
effect to the offering and sale of the Securities,
will not be an "investment company" as defined in the
Investment Company Act; and
(xii) each of the Company and its
subsidiaries owns, possesses or has obtained all
licenses, permits, certificates, consents, orders,
approvals and other authorizations from, and has made
all declarations and filings with, all federal, state,
local and other governmental authorities (including
foreign regulatory agencies), all self-regulatory
organizations and all courts and other tribunals,
domestic or foreign, necessary to own or lease, as the
case may be, and to operate its properties and to
carry on its business as conducted as of the date
hereof, with such exceptions as do not have a Material
Adverse Effect, and neither the Company nor any such
subsidiary has received any actual notice of any
proceeding relating to revocation or modification of
any such license, permit, certificate, consent, order,
approval or other authorization, which individually
and in the aggregate, if the subject of an unfavorable
decision, ruling or finding would have a Material
Adverse Effect, except as described in the
Registration Statement and the Prospectus; and each of
the Company and its subsidiaries is in compliance with
all laws and regulations relating to the conduct of
its business as conducted as of the date of the
Prospectus, with such exceptions as do not have a
Material Adverse Effect.
Such counsel may state that its opinions set forth in clauses
(vi) and (vii) above are subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
Such counsel shall state that it is of the opinion that the
Registration Statement (or, if applicable, the Registration Statement as
amended by any post-effective amendment prior to the Closing Date), as of its
effective date, and the Prospectus, as of the date of the Prospectus
Supplement, complied as to form in all material respects with the requirements
of the Securities Act and the Trust Indenture Act and that the Exchange Act
Documents complied as to form when filed in all material respects with the
requirements of the Exchange Act, except that such counsel need not express an
opinion with respect to financial statements or other financial data.
In passing on the form of the Registration Statement (or, if
applicable, the Registration Statement as amended by any post-effective
amendment prior to the Closing Date), the Prospectus and the Exchange Act
Documents, such counsel may state that it has not independently verified the
accuracy, completeness or fairness of the statements made or included therein
and takes no responsibility therefor (except as and to the extent set forth in
clause (x) above) and that such opinion is based upon such counsel's
examination of the Registration Statement (or, if applicable, the Registration
Statement as amended by any post-effective amendment prior to the Closing
Date), the Prospectus and the Exchange Act Documents, its investigation made in
connection with the preparation of the Registration Statement (or, if
applicable, the Registration Statement as amended by any post-effective
amendment prior to the Closing Date) and the Prospectus (excluding the Exchange
Act Documents) and its participation in conferences with certain officers and
employees of the Company, with representatives of Arthur Andersen, with counsel
to the Company and any others referred to in such opinion; subject to the same
qualifications, such counsel shall also state that it has no reason to believe
that the Registration Statement (or, if applicable, the Registration Statement
as amended by any post-effective amendment prior to the Closing Date), as of
its effective date (including the Exchange Act Documents on file with the
Commission on such effective date) (or, if the Company has filed an Annual
Report on Form 10-K with the Commission subsequent to such effective date, as
of the date of filing of such Annual Report, in which case, Exchange Act
Documents shall mean such Annual Report and the Exchange Act documents on file
with the Commission on the date of filing of such Annual Report), contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading or that the Prospectus (including the Exchange Act
Documents) contains any untrue statement of a material fact or omits to state
any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, except
that in each case, such counsel need not express a belief with respect to
financial statements or other financial data.
In rendering such opinion, such counsel may rely as to certain
matters of fact on certificates of officers of the Company and of public
officials and may state that it expresses no opinion as to the laws of any
jurisdiction other than the federal law of the United States, the laws of the
State of New Jersey and, to the extent set forth therein, the laws of the State
of New York. Insofar as the opinions of such counsel relate to or are
dependent upon matters governed by the laws of the State of New York, such
counsel may rely upon the opinion of Simpson Thacher & Bartlett referred to
above.
(g) on the date hereof and on the Closing Date, Arthur
Andersen LLP shall have furnished to you letters, dated such date, in
form and substance reasonably satisfactory to you, containing
statements and information of the type customarily included in
accountants "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus;
(h) you shall have received on and as of the Closing Date
an opinion of Davis Polk & Wardwell, counsel to the Underwriters, with
respect to the validity of the Indenture and the Securities, the
Registration Statement, the Prospectus and other related matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters; and
(i) on or prior to the Closing Date, the Company shall
have furnished to the Representatives such further certificates and
documents as the Representatives shall reasonably request.
7. The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages and
liabilities (including without limitation the reasonable legal fees and other
expenses incurred in connection with any suit, action or proceeding or any
claim asserted) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with information relating to any Underwriter furnished
to the Company in writing by such Underwriter through the Representatives ex-
pressly for use therein; provided that the foregoing indemnity with respect to
any preliminary prospectus shall not inure to the benefit of any Underwriter
(or to the benefit of any person controlling such Underwriter) from whom the
person asserting any such losses, claims, damages or liabilities purchased
Securities if such untrue statement or omission or alleged untrue statement or
omission made in such preliminary prospectus is eliminated or remedied in the
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) and, if required by law, a copy of the
Prospectus (as so amended or supplemented) shall not have been furnished to
such person at or prior to the written confirmation of the sale of such
Securities to such person.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person who controls the Company within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act,
to the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in the Registration Statement, the
Prospectus, any amendment or supplement thereto, or any preliminary prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of
the two preceding paragraphs, such person (the "Indemnified Person") shall
promptly notify the person against whom such indemnity may be sought (the
"Indemnifying Person") in writing, and the Indemnifying Person, shall be
entitled to participate in the defense thereof and, to the extent it wishes, to
assume the defense thereof and retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the
reasonable fees and expenses of such counsel related to such proceeding. In
any such proceeding, any Indemnified Person shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Person unless (i) the Indemnifying Person and the
Indemnified Person shall have mutually agreed to the contrary, (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person or (iii) the named parties in
any such proceeding (including any impleaded parties) include both the
Indemnifying Person and the Indemnified Person and representation of both
parties by the same counsel would be in the reasonable judgment of the
Indemnified Person, inadvisable due to actual or potential differing interests
between them. It is understood that the Indemnifying Person shall not, in
connection with any proceeding or related proceeding in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all Indemnified Persons, and that all such fees and
expenses shall be reimbursed as they are incurred. Any such separate firm for
the Underwriters and such control persons of Underwriters shall be designated
in writing by the first of the named Representatives on Schedule I hereto and
any such separate firm for the Company, its directors, its officers who sign
the Registration Statement and such control persons of the Company or
authorized representatives shall be designated in writing by the Company. The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the Indemnifying Person agrees to
indemnify any Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an Indemnified Person shall have requested an Indemnifying
Person to reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by the third sentence of this paragraph, the Indemnifying Person
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 60
days after receipt by such Indemnifying Person of the aforesaid requests;
provided that the aforesaid 60 day period shall be tolled for a period equal to
the number of days during which there exists a good faith dispute with respect
to the reasonableness of the fees and expenses of counsel as contemplated by
the third sentence of this paragraph and (ii) such Indemnifying Person shall
not have reimbursed the Indemnified Person in accordance with such request and
the provisions of this Section 7 prior to the date of such settlement. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in
respect of which any Indemnified Person is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Person, unless
such settlement includes an unconditional release of such Indemnified Person
from all liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable
by such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above 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 the Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other shall be
deemed to be in the same respective proportions as the net proceeds from the
offering of such Securities (before deducting expenses) received by the Company
and the total underwriting discounts and the commissions received by the
Underwriters bear to the aggregate public offering price of the Securities.
The relative fault of the Company on the one hand and the Underwriters on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such Indemnified
Person in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 7 are several in proportion
to the respective principal amount of the Securities set forth opposite their
names in Schedule II hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company set forth in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement (provided, that the representations and
warranties of the Company shall not survive a termination of the Agreement
pursuant to Section 9), (ii) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter or by or on behalf of the
Company, its officers or directors or any other person controlling the Company
and (iii) acceptance of and payment for any of the Securities.
8. Notwithstanding anything herein contained, this Agreement may
be terminated in the absolute discretion of the Representatives, by notice
given to the Company, if after the execution and delivery of this Agreement and
prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, the New York Stock Exchange, (ii) trading of any
securities of or guaranteed by the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities, or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis, if the effect of any such event specified in clauses (i)
through (iv), in the judgment of the Representatives, is material and adverse
and which, in the judgment of the Representatives, makes it impracticable to
market the Securities on the terms and in the manner contemplated in the
Prospectus.
9. If, on the Closing Date, any one or more of the Underwriters
shall fail or refuse to purchase Securities which it or they have agreed to
purchase under this Agreement, and the aggregate principal amount of Securities
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase is not more than one-tenth of the aggregate principal amount of the
Securities, the other Underwriters shall be obligated severally in the
proportions that the principal amount of Securities set forth opposite their
respective names in Schedule II hereto bears to the aggregate principal amount
of Securities set forth opposite the names of all such non-defaulting Under-
writers, or in such other proportions as the Representatives may specify, to
purchase the Securities which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase on such date; provided that in no
event shall the principal amount of Securities that any Underwriter has agreed
to purchase pursuant to Section 1 be increased pursuant to this Section 9 by an
amount in excess of one-ninth of such principal amount of Securities without
the written consent of such Underwriter. If, on the Closing Date, any
Underwriter or Underwriters shall fail or refuse to purchase Securities and the
aggregate principal amount of Securities with respect to which such default
occurs is more than one-tenth of the aggregate principal amount of Securities
to be purchased, and arrangements satisfactory to you and the Company for the
purchase of such Securities are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any non-de-
faulting Underwriter or the Company. In any such case either you or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than five Business Days, in order that the required changes, if any, in
the Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement or any condition of the Underwriters' obligations cannot be ful-
filled, the Company agrees to reimburse the Underwriters or such Underwriters
as have so terminated this Agreement with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and expenses of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering of Securities. Notwithstanding the foregoing, the provisions of
this Section 10 shall not apply to any termination of this Agreement pursuant
to Section 8 hereof.
11. This Agreement shall inure to the benefit of and be binding
upon the Company, the Underwriters, any controlling persons referred to herein
and their respective successors and assigns. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any other person, firm
or corporation any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. No purchaser of
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
12. Any action by the Underwriters hereunder may be taken by you
jointly or by the first of the named Representatives set forth in Schedule I
hereto alone on behalf of the Underwriters, and any such action taken by you
jointly or by the first of the named Representatives set forth in Schedule I
hereto alone shall be binding upon the Underwriters. All notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be given at the address (or telecopy no.) set
forth in Schedule I hereto. Notices to the Company shall be given to it at 730
Central Avenue, Murray Hill, New Jersey, 07974, Attention: Richard A. Flink,
Esq. (telecopy no: 908-277-8025), with a copy to Simpson Thacher & Bartlett,
425 Lexington Avenue, New York, New York 10017, Attention: Philip T. Ruegger
III, Esq. (telecopy no: 212-455-2502).
13. This Agreement may be signed in counterparts, each of which
shall be an original and all of which together shall constitute one and the
same instrument.
14. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to the conflicts
of laws provisions thereof.
Very truly yours,
C. R. BARD, INC.
By:_______________________
Name:
Title:
Accepted: __________, 199__
J. P. MORGAN SECURITIES INC.
[CO-MANAGER]
Acting severally on behalf of
[itself/themselves] and the several
Underwriters listed in Schedule II
hereto.
By: J. P. MORGAN SECURITIES INC.
By:___________________________
Name:
Title:
SCHEDULE I
Representatives<F1>: _________________________________________
Underwriting Agreement
dated: _________________________________________
Registration Statement
No.: _________________________________________
Title of Securities: _________________________________________
Aggregate principal
amount: $________________________________________
Price to Public: __% of the principal amount of the Securities,
plus accrued interest, if any, from _______,
19__ to the Closing Date.
Indenture: Indenture dated as of _________ between the
Company and _____________________ as Trustee.
Address of Trustee: _____________________________________________
Maturity: _____________________________________________
Interest Rate: _____________________________________________
Interest Payment Dates: _____________________________________________
Optional Redemption
Provisions: _____________________________________________
Sinking Fund Provisions: _____________________________________________
Other Provisions: _____________________________________________
Closing Date and
Time of Delivery: _____________________________________________
Closing Location: _____________________________________________
Address (and telecopy
no.) for Notices
to Underwriters: ______________________________________________
SCHEDULE II
Principal Amount
of Securities
To be Purchased
Underwriter
J.P. Morgan Securities Inc. . . . . . . . $__________
[Co-Manager] . . . . . . . . . . . . . . $__________
Total . . . . . $==========
____________________
[FN]
<F1>Bookrunning Representative should be named first for purposes of Sections 7
and 12.
EXHIBIT 3.1
C. R. BARD, INC.
RESTATED CERTIFICATE OF INCORPORATION
To: The Secretary of State
State of New Jersey
Pursuant to the provisions of Section 14A:9-5, Corporations, General,
of the New Jersey Statutes, the undersigned Corporation hereby executes the
following Restated Certificate of Incorporation:
FIRST: The name of the corporation is
C. R. BARD, INC.
SECOND: The purpose or purposes for which the Corporation is
organized are to engage in any activity within the lawful business purposes for
which corporations may be organized under the New Jersey Business Corporation
Act.
THIRD: The aggregate number of shares which the Corporation is
authorized to issue is 305,000,000 shares, consisting of 300,000,000 shares of
Common Stock, par value $.25 (Twenty Five Cents) per share, and 5,000,000
shares of Preferred Stock, par value $1.00 (One Dollar) per share. The
designations, relative rights, preferences and limitations of the shares of
each clause shall be as follows:
Subject to the provisions hereof, the Board of Directors is hereby
expressly authorized to divide shares of Preferred Stock into classes and into
series within any class or classes, to issue the shares of Preferred Stock in
such class or classes and in series within any class or classes, and to fix
from time to time, before issuance, the number of shares to be included in each
class or series within a class and the designation, relative rights,
preferences and limitations of all shares of each class or series within a
class. The authority of the Board of Directors with respect to each class or
series within a class shall include, without limitation, the determination of
any or all of the following matters:
(a) The number of shares constituting such class or series within a
class and the designation thereof to distinguish the shares of such class
or series within a class from the shares of all other classes or series;
(b) The annual dividend rate on the shares of such class or series
within a class and whether such dividends shall be cumulative and, if
cumulative, the date from which dividends shall accumulate;
(c) The redemption price or prices for shares of such class or
series within a class, if redeemable, and the terms and conditions of such
redemption;
(d) The preference, if any, of shares of such class or series within
a class in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation;
(e) The voting rights, if any, of shares of such class or series
within a class in addition to the voting rights prescribed by law and the
terms of exercise of such voting rights;
(f) The rights, if any, of shares of such class or series within a
class to be converted into shares of any other class or series, including
Common Stock, and the terms and conditions of such conversion;
(g) The terms or amount of any sinking fund provided for the
purchase or redemption of such class or series within a class; and
(h) Any other relative rights, preferences and limitations of such
class or series within a class.
The shares of each class and of each series within a class may vary
from the shares of any other class or series as to any of such matters.
Dividends on all outstanding shares of Preferred Stock must be
declared and paid, or set aside for payment, before any dividends may be
declared and paid, or set aside for payment, on shares of Common Stock with
respect to the same dividend period.
Each share of Common Stock shall be equal in all respects to every
other share of Common Stock.
FOURTH: No holder of any shares of the Corporation, now or hereafter
authorized, shall have any right as such holder to purchase or subscribe for or
otherwise acquire any shares or any securities or obligations convertible into,
or exchangeable for, or any right, warrant or option to purchase, any shares of
any class which the Corporation may at any time hereafter issue or sell,
whether now or hereafter authorized, but any and all such shares, securities,
obligations, rights, warrants and options may be issued and disposed of by the
Board of Directors to such persons, firms, corporations and associations, and
for such lawful consideration, and on such terms, as the Board of Directors in
its discretion may determine, without first offering the same, or any thereof,
to the shareholders.
FIFTH: The address of the Corporation's current registered office is
730 Central Avenue, Murray Hill, New Jersey 07974, and the name of the
Corporation's current registered agent at such address is Richard A. Flink.
SIXTH: The Board of Directors of the Corporation shall consist of no
fewer than three and no more than fourteen directors, with the exact number of
directors to be determined in accordance with the By-Laws of the Corporation.
The directors of the Corporation shall be divided into three classes, namely,
Classes I, II and III, with each class consisting of not fewer than one nor
more than five directors, as determined in accordance with the By-Laws of the
Corporation. At each annual meeting of shareholders, the successors to any
class of directors whose terms shall then expire shall be elected to serve
until the third annual meeting following their election and until their
successors shall be elected and qualified. Directors elected as hereinbefore
provided may not be removed prior to the expiration of their respective terms
of office without cause.
Notwithstanding any provision of this Restated Certificate of
Incorporation to the contrary, (1) no amendment to this Restated Certificate of
Incorporation shall amend, alter, change or repeal any provision of this
Article SIXTH except upon the affirmative vote of the holders of at least
seventy-five percent of the outstanding shares of all classes of capital stock
of the Corporation entitled to vote thereon, and (2) no amendment to this
Restated Certificate of Incorporation shall be adopted empowering shareholders
to remove directors without cause except upon the affirmative vote of the
holders of at least seventy-five percent of the outstanding shares of all
classes of capital stock of the Corporation entitled to vote thereon.
The number of directors constituting the current Board of Directors
is eleven, the address for each of them is C. R. Bard, Inc., 730 Central
Avenue, Murray Hill, New Jersey 07974 and their names and classes are as
follows:
CLASS I
William C. Bopp
William T. Butler, M.D.
Raymond B. Carey, Jr.
Daniel A. Cronin, Jr.
CLASS II
Joseph F. Abely, Jr.
Robert P. Luciano
Robert H. McCaffrey
Benson F. Smith
CLASS III
T. Kevin Dunnigan
Regina E. Herzlinger
William H. Longfield
SEVENTH: The Corporation shall indemnify its directors, officers and
employees in the manner and to the extent permitted by the laws of the State of
New Jersey.
EIGHTH: Subject to the provisions of the New Jersey Business
Corporation Act, contracts or other transactions between the Corporation and
its directors or between the Corporation and other firms or associations in
which its directors are interested in any way, shall not be void or voidable
due solely to such common interest.
NINTH: Subject to the provisions of the New Jersey Business
Corporation Act, the directors, and committee members appointed by the Board of
Directors, shall not be liable in the discharge of their duties when relying in
good faith upon the corporate records and/or competent advice of any type.
TENTH: Except for actions required or permitted to be taken at a
meeting of shareholders by Chapter 10 of the New Jersey Business Corporation
Act, any action required or permitted to be taken at a meeting of shareholders
may be taken without a meeting upon the written consent of shareholders who
would have been entitled to cast the minimum number of votes which would be
required to take such action at a meeting at which all shareholders entitled to
vote thereon are present.
ELEVENTH: Except as set forth below, the affirmative vote of the
holders of at least seventy-five percent of the outstanding shares of all
classes of capital stock of the Corporation entitled to vote thereon, shall be
required in order to authorize or adopt (a) any agreement for the merger or
consolidation of the Corporation with or into any other corporation which is
required by law to be approved by shareholders, (b) any sale, lease, transfer
or other disposition by the Corporation of all or any substantial part of the
assets of the Corporation to any other corporation, person or other entity, or
(c) any issuance or delivery of securities of the Corporation in exchange or
payment for any securities, properties or assets of any other person in a
transaction in which the authorization or approval of shareholders of the
Corporation is required by law or by any agreement to which the Corporation is
a party, if as of the record date for the determination of shareholders
entitled to notice thereof and to vote thereon or consent thereto, such other
corporation, person or entity which is a party to such transaction is the
beneficial owner, directly or indirectly, of more than 5% of the outstanding
shares of stock of the Corporation.
For the purpose of this Article ELEVENTH (a) any corporation, person
or other entity shall be deemed to be the beneficial owner of any shares of
stock of the Corporation (i) which it owns directly, whether or not of record,
or (ii) which it has the right to acquire pursuant to any agreement or
understanding or upon exercise of conversion rights, warrants or options, or
otherwise, or (iii) which are beneficially owned, directly or indirectly
(including shares deemed owned through application of clause (ii) above), by an
"affiliate" or "associate" (as defined below) or (iv) which are beneficially
owned, directly or indirectly (including shares deemed owned through
application of clauses (ii) above), by any other corporation, person or entity
with which it or its "affiliate" or "associate" has any agreement, arrangement
or understanding for the purpose of acquiring, holding, voting or disposing of
stock of the Corporation, and (b) the outstanding shares of any class of stock
of the Corporation shall include shares deemed owned through application of
clauses (a) (ii), (iii) and (iv), above but shall not include any other shares
which may be issuable pursuant to any agreement, or upon exercise of conversion
rights, warrants or options, or otherwise.
The term "affiliate" is defined as:
An "affiliate" of, or a person "affiliated" with, a specified person,
is a person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with, the persons specified.
The term "associate" is defined as:
The term "associate" used to indicate a relationship with any person,
means (1) any corporation or organization (other than this Corporation or
a majority-owned subsidiary of this Corporation) of which such person is
an officer or partner or is, directly or indirectly, the beneficial owner
of 10% or more of any class of equity securities, (2) any trust or other
estate in which such person has a substantial beneficial interest or as to
which such person serves as trustee or in a similar fiduciary capacity,
and (3) any relative or spouse of such person, or any relative of such
spouse, who has the same home as such person or who is a director or
officer of this Corporation or any of its parents or subsidiaries.
The provisions of this Article ELEVENTH shall not be applicable to
(i) any merger or consolidation of the Corporation with or into any other
corporation, or any sale or lease of all or any substantial part of the assets
of the Corporation to any other corporation, person or entity, if the Board of
Directors of the Corporation shall by resolution have approved a memorandum of
understanding, letter of intent or agreement with such other corporation,
person or entity with respect to and substantially consistent with such
transaction, prior to the time that such other corporation, person or entity
shall have become a beneficial owner of more than 5% of the outstanding shares
of stock of the Corporation; or (ii) any merger or consolidation of the
Corporation with, or any sale to the Corporation or any subsidiary thereof of
any of the assets of, any corporation of which a majority of the outstanding
shares of stock is owned of record or beneficially by the Corporation and its
subsidiaries.
The Board of Directors shall have the power and duty to determine for
the purposes of this Article ELEVENTH on the basis of information known to the
Corporation, whether (i) such other corporation, person, or other entity
beneficially owns more than 5% of the outstanding shares of stock of the
Corporation, (ii) such corporation, person or entity is an "affiliate" or
"associate" (as defined above) of another, and (iii) the memorandum of
understanding, letter of intent or agreement referred to above is substantially
consistent with the transaction covered thereby. Any such determination shall
be conclusive and binding for all purposes of this Article ELEVENTH.
No amendment to this Restated Certificate of Incorporation shall
amend, alter, change or repeal any of the provisions of this Article ELEVENTH,
unless the amendment effecting such amendment, alteration, change or repeal
shall receive the affirmative vote of the holders of at least seventy-five
percent of the outstanding shares of all classes of capital stock of the
Corporation entitled to vote thereon.
TWELFTH: The provisions of this Article TWELFTH shall be applicable
to any transaction to which Article ELEVENTH is applicable (each such
transaction being referred to hereinafter in this Article TWELFTH as a "Special
Business Combination"); provided, however, that the provisions of this Article
TWELFTH shall not be applicable to any Special Business Combination which shall
have been approved by a majority of those members of the Corporation's Board of
Directors who were in office immediately prior to the time when any shareholder
of the Corporation which is a party to such Special Business Combination became
an Interested Shareholder (as such term is defined below). No Special Business
Combination to which this Article TWELFTH is applicable shall be authorized or
adopted unless the conditions specified in clauses (i) and (ii) below are
satisfied:
(i) Minimum Price and Form of Consideration
(A) The holders of shares of each class or series of the outstanding
shares of all classes of capital stock of the Corporation entitled to vote
thereon ("Voting Shares") are to receive in such Special Business
Combination an aggregate amount of cash and fair value of consideration
per share other than cash that either shall be solely in cash or shall be
in the same form and of the same kind as the consideration paid by the
Interested Shareholder and its "affiliates" and "associates" (as such
terms are defined in Article ELEVENTH) in acquiring the majority of the
outstanding Voting Shares beneficially owned by them at the time of such
Special Business Combination; and
(B) The holders of shares of Common Stock of the Corporation are to
receive in such Special Business Combination an aggregate amount of cash
and fair value of consideration per share other than cash that shall be at
least equal to the higher of the following:
(1) the highest per share price (with appropriate adjustments
for recapitalizations and for stock splits, stock dividends and
similar distributions) paid by such Interested Shareholder and its
affiliates and associates for any shares of Common Stock acquired by
them within the three-year period prior to the record date of the
meeting of shareholders called to consider and vote upon the proposed
Special Business Combination; or
(2) the per share book value of the Common Stock at the end of
the fiscal quarter immediately preceding the record date of the
meeting of shareholders called to consider and vote upon the proposed
Special Business Combination; and
(C) The holders of shares of each class or series of Voting Shares
other than Common Stock, if any, are to receive in such Special Business
Combination an aggregate amount of cash and fair value of consideration
per share other than cash that shall be at least equal to the highest per
share price (with appropriate adjustments for recapitalizations and for
stock splits, stock dividends and similar distributions) paid by such
Interested Shareholder and its affiliates and associates for any shares of
such class or series of Voting Shares acquired by them within the
three-year period prior to the record date of the meeting of shareholders
called to consider and vote upon the proposed Special Business
Combination.
(ii) Procedural Requirements
(A) After such Interested Shareholder has become an Interested
Shareholder and prior to the consummation of such Special Business
Combination, (1) there shall have been no failure to declare and pay at
the regular date therefor any full periodic dividends (whether or not
cumulative) on any Preferred Stock issued and outstanding pursuant to this
Restated Certificate of Incorporation, (2) there shall have been (x) no
reduction in the annual rate of dividends paid on the Common Stock (except
as necessary to reflect any subdivision of the Common Stock) and (y) an
increase in such annual rate of dividends as necessary to reflect any
reclassification (including any reverse stock split), recapitalization,
reorganization or any similar transaction that has the effect of reducing
the number of outstanding shares of the Common Stock, and (3) such
Interested Shareholder shall not have become the beneficial owner of any
additional shares of Voting Shares except as part of the transaction that
results in such Interested Shareholder's becoming an Interested
Shareholder.
(B) After such Interested Shareholder has become an Interested
Shareholder, such Interested Shareholder shall not have received the
benefit, directly or indirectly (except proportionately as a shareholder),
of any loans, advances, guarantees, pledges or other financial assistance
or any tax credits or other tax advantages provided by the Corporation.
(C) A proxy or information statement describing the proposed Special
Business Combination and complying with the requirements of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder
(or any subsequent provisions replacing such Act, rules or regulations)
shall be mailed to public shareholders of the Corporation at least 30 days
prior to the consummation of such Special Business Combination (whether or
not such proxy or information statement is required to be mailed pursuant
to such Act or subsequent provisions). Any such proxy or information
statement shall also contain the recommendations of each of the members of
the Board of Directors as to the advisability of the proposed Special
Business Combination as well as the opinion of an investment banker
selected by a majority of the members of the Board of Directors as to the
fairness of the terms of the proposed Special Business Combination to the
Corporation and its shareholders.
The Board of Directors shall have the power and duty to determine for
the purposes of this Article TWELFTH on the basis of information known to the
Corporation (i) whether any corporation, person, or other entity beneficially
owns more than 5% of the outstanding shares of stock of the Corporation, (ii)
whether any corporation, person or entity is an "affiliate" or "associate" (as
defined in Article ELEVENTH) of another; (iii) whether a Special Business
Combination has been proposed, (iv) the fair value of any consideration other
than cash to be received by holders of shares of any class or series of Voting
Shares in a Special Business Combination; and (v) any other relevant facts
necessary to determine the applicability of any provision of this Article
TWELFTH to a Special Business Combination. Any such determination shall be
conclusive and binding for all purposes of this Article TWELFTH.
For the purposes of this Article TWELFTH, the term "Interested
Shareholder" is defined as the beneficial owner, directly or indirectly
(including shares deemed owned by an "affiliate" or "associate" of such person
as described in Article ELEVENTH), of more than 5% of the outstanding shares of
stock of the Corporation.
No amendment to this Restated Certificate of Incorporation shall
amend, alter, change or repeal any of the provisions of this Article TWELFTH,
unless the amendment effecting such amendment, alteration, change or repeal
shall receive the affirmative vote of the holders of at least a majority of the
voting power of each class of capital stock of the Corporation; provided,
however, that if on the record date for the meeting at which such proposed
action is submitted to shareholders there is an Interested Shareholder who has
proposed a Special Business Combination, or on whose behalf a Special Business
Combination has been proposed, then the votes of such Interested Shareholder
and its affiliates and associates shall not be counted in calculating the
requisite vote for approval of the proposed action.
THIRTEENTH: Except as expressly permitted in the next succeeding
paragraph of this Article THIRTEENTH, any purchase by the Company, or any
Subsidiary (as hereinafter defined), of shares of Voting Stock (as hereinafter
defined) from a 5% Shareholder (as hereinafter defined) at a per share price in
excess of the Market Price (as hereinafter defined) at the time of such
purchase of the shares so purchased shall require the affirmative vote of the
holders of that amount of the voting power of the Voting Stock equal to the sum
of (i) the voting power of the shares of Voting Stock of which the 5%
Shareholder is the beneficial owner (as hereinafter defined) and (ii) a
majority of the voting power of the remaining outstanding shares of Voting
Stock, voting together as a single class.
The provisions of the first paragraph of this Article THIRTEENTH
shall not be applicable to any purchase of shares of Voting Stock pursuant to
(i) an offer, made available on the same terms, to the holders of all of the
outstanding shares of the same class of Voting Stock as those so purchased or
(ii) a purchase program effected on the open market and not as a result of a
privately-negotiated transaction.
For the purposes of this Article THIRTEENTH:
(i) A "person" shall mean any individual, firm, corporation or other
entity.
(ii) "Voting Stock" shall mean the outstanding shares of all classes
of capital stock of the Company entitled to vote generally in the election
of directors.
(iii) "5% Shareholder" shall mean any person (other than the Company
or any Subsidiary) who or which:
(a) is the beneficial owner, directly or indirectly, of more
than 5% of the voting power of the outstanding shares of Voting
Stock; or
(b) is an affiliate (as such term is defined in Article
ELEVENTH) of the Company and at any time within the two-year period
immediately prior to the date in question was the beneficial owner,
directly or indirectly, of more than 5% of the voting power of the
then outstanding shares of Voting Stock; or
(c) is an assignee of or has otherwise succeeded to any shares
of Voting Stock which were at any time within the two-year period
immediately prior to the date in question beneficially owned by any
5% Shareholder, if such assignment or succession shall have occurred
in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities Act
of 1933.
(iv) A person shall be a "beneficial owner" of any shares of Voting
Stock:
(a) which such person or any of its affiliates or associates
(as such term is defined in Article ELEVENTH) beneficially owns,
directly or indirectly; or
(b) which such person or any of its affiliates or associates
has (1) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise, or (2) the right to vote pursuant to any agreement,
arrangement or understanding; or
(c) which are beneficially owned, directly or indirectly, by
any other person with which such person or any of its affiliates or
associates has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any shares of
Voting Stock.
(v) For the purpose of determining whether a person is a "5%
Shareholder" pursuant to clause (iii) above, (the number of shares of
Voting Stock deemed to be outstanding shall include shares deemed owned
through application of clause (iv) above, but shall not include any other
shares of Voting Stock which may be issuable pursuant to any agreement,
arrangement or understanding, or upon exercise of conversion rights,
warrants or options, or otherwise.
(vi) "Subsidiary" shall mean any corporation of which a majority of
any class of equity security is owned, directly or indirectly, by the
Company; provided, however, that for the purpose of the definition of a
"5% Shareholder" set forth in clause (iii) above the term "Subsidiary"
shall mean only a corporation of which a majority of the voting power of
the capital stock entitled to vote generally in the election of directors
is owned, directly or indirectly, by the Company.
(vii) "Market Price" shall mean the last closing sale price
immediately preceding the time in question of a share of the stock in
question on the Composite Tape for New York Stock Exchange Listed Stocks,
or, if such stock is not quoted on the Composite Tape, on the New York
Stock Exchange, or, if such stock is not listed on such Exchange, on the
principal United States securities exchange registered under the
Securities Exchange Act of 1934 on which such stock is listed, or, if such
stock is not listed on any such exchange, the last closing bid quotation
with respect to a share of such stock immediately preceding the time in
question on the National Association of Securities Dealers, Inc.,
Automated Quotations System or any comparable system then in use (or any
other system of reporting or ascertaining quotations then available), or,
if such stock is not so quoted, the fair market value at the time in
question of a share of such stock as determined by a majority of the
entire Board of Directors in good faith.
The Board of Directors of the Company shall have the power and duty
to determine for the purposes of this Article THIRTEENTH, on the basis of
information known to them after reasonable inquiry, (i) whether the provisions
of this Article THIRTEENTH are applicable to a particular transaction, (ii)
whether a person is a 5% Shareholder, (iii) the number of shares of Voting
Stock beneficially owned by any person and (iv) whether a person is an
affiliate or an associate of another person. The good faith determination of
the Board of Directors shall be conclusive and binding for all purposes of this
Article THIRTEENTH.
Notwithstanding any other provision of this Restated Certificate of
Incorporation or the By-Laws, as amended, of the Company (and notwithstanding
the fact that a lesser percentage may be specified by law, this Restated
Certificate of Incorporation or the By-Laws, as amended, of the Company), the
affirmative vote of the holders of at least seventy-five percent of the voting
power of the outstanding Voting Stock, voting together as a single class, shall
be required to alter, amend or repeal, or adopt any provision inconsistent
with, this Article THIRTEENTH.
FOURTEENTH: A director or officer of the Corporation shall not be
personally liable to the Corporation or its shareholders for breach of duty as
a director or officer, except to the extent and for the duration of any period
of time such personal liability may not be eliminated or limited under the New
Jersey Business Corporation Act as the same exists or may hereafter be amended.
Dated as of this 17th day of April, 1996.
C. R. BARD, INC.
By /s/ William H. Longfield
William H. Longfield
Chairman and
Chief Executive Officer
EXHIBIT 4.1
============================================================
C. R. BARD, INC.
AND
THE CHASE MANHATTAN BANK, N.A., as Trustee
Indenture
Dated as of ________, 1996
============================================================
CROSS REFERENCE SHEET<F1>
__________
Between
Provisions of Trust Indenture Act of 1939 and Indenture dated as of
________, 1996 between C. R. BARD, INC. and THE CHASE MANHATTAN BANK, N.A., as
Trustee:
Section of the Act Section of Indenture
310(a)(1) and (2) . . . . . . . . . . . 6.9
310(a)(3) and (4) . . . . . . . . . . . Inapplicable
310(b) . . . . . . . . . . . . . . . . 6.8 and 6.10(a), (b) and (d)
310(c) . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . 6.13(a) and (c)(1) and (2)
311(b) . . . . . . . . . . . . . . . . 6.13(b)
311(c) . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . 4.1 and 4.2(a)
312(b) . . . . . . . . . . . . . . . . 4.2(a) and (b)(i) and (ii)
312(c) . . . . . . . . . . . . . . . . 4.2(c)
313(a) . . . . . . . . . . . . . . . . 4.4(a)
313(b)(1) . . . . . . . . . . . . . . . Inapplicable
313(b)(2) . . . . . . . . . . . . . . . 4.4(a)
313(c) . . . . . . . . . . . . . . . . 4.4(a)
313(d) . . . . . . . . . . . . . . . . 4.4(b)
314(a) . . . . . . . . . . . . . . . . 4.3, 3.5
314(b) . . . . . . . . . . . . . . . . Inapplicable
314(c)(1) and (2) . . . . . . . . . . . 11.5
314(c)(3) . . . . . . . . . . . . . . . Inapplicable
314(d) . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . 11.5
314(f) . . . . . . . . . . . . . . . . Inapplicable
315(a), (c) and (d) . . . . . . . . . . 6.1
315(b) . . . . . . . . . . . . . . . . 5.11
315(e) . . . . . . . . . . . . . . . . 5.12
316(a)(1) . . . . . . . . . . . . . . . 5.9
316(a)(2) . . . . . . . . . . . . . . . Not required
316(a) (last sentence) 7.4
316(b) . . . . . . . . . . . . . . . . 5.7
317(a) . . . . . . . . . . . . . . . . 5.2
317(b) . . . . . . . . . . . . . . . . 3.4
318(a) . . . . . . . . . . . . . . . . 11.7
[FN]
<F1> This Cross Reference Sheet is not part of the Indenture.
TABLE OF CONTENTS
Page
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Authorization of Indenture . . . . . . . . . . . . . . . . . . . 1
Compliance with Legal Requirements . . . . . . . . . . . . . . . 1
Purpose of and Consideration for Indenture . . . . . . . . . . . 1
ARTICLE I.
DEFINITIONS
SECTION 1.1. Certain Terms Defined . . . . . . . . . . . . . . . . 8
Attributable Debt . . . . . . . . . . . . . . . . . . . . . . 8
Board of Directors . . . . . . . . . . . . . . . . . . . . . . 9
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . 9
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . 9
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Consolidated Net Worth . . . . . . . . . . . . . . . . . . . . 9
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . 9
Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Dollar . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Domestic Subsidiary . . . . . . . . . . . . . . . . . . . . . 10
ECU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
European Communities . . . . . . . . . . . . . . . . . . . . . 10
Event of Default . . . . . . . . . . . . . . . . . . . . . . . 10
Foreign Currency . . . . . . . . . . . . . . . . . . . . . . . 10
Funded Debt . . . . . . . . . . . . . . . . . . . . . . . . . 10
Global Security . . . . . . . . . . . . . . . . . . . . . . . 10
Holder, holder of Securities, Securityholder . . . . . . . . . 10
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Issuer Order . . . . . . . . . . . . . . . . . . . . . . . . . 10
Mortgage . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Officers' Certificate . . . . . . . . . . . . . . . . . . . . 11
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . 11
Original Issue Date . . . . . . . . . . . . . . . . . . . . . 11
Original Issue Discount Security . . . . . . . . . . . . . . . 11
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . 11
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
principal . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Principal Property . . . . . . . . . . . . . . . . . . . . . . 12
Responsible Officer . . . . . . . . . . . . . . . . . . . . . 12
Security or Securities . . . . . . . . . . . . . . . . . . . . 12
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Trust Indenture Act of 1939 . . . . . . . . . . . . . . . . . 12
vice president . . . . . . . . . . . . . . . . . . . . . . . . 12
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE II.
SECURITIES
SECTION 2.1. Forms Generally . . . . . . . . . . . . . . . . . . . 13
SECTION 2.2. Form of Trustee's Certificate of Authentication . . . 13
SECTION 2.3. Amount Unlimited; Issuable in Series . . . . . . . . 13
SECTION 2.4. Authentication and Delivery of Securities . . . . . . 15
SECTION 2.5. Execution of Securities . . . . . . . . . . . . . . . 16
SECTION 2.6. Certificate of Authentication . . . . . . . . . . . . 17
SECTION 2.7. Denomination and Date of Securities; Payments of
Interest . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.8. Registration, Transfer and Exchange . . . . . . . . . 18
SECTION 2.9. Mutilated, Defaced, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . . . . . 20
SECTION 2.10. Cancellation of Securities; Destruction Thereof . . . 21
SECTION 2.11. Temporary Securities . . . . . . . . . . . . . . . . 21
ARTICLE III.
COVENANTS OF THE ISSUER
SECTION 3.1. Payment of Principal and Interest . . . . . . . . . . 21
SECTION 3.2. Offices for Payments, etc. . . . . . . . . . . . . . 22
SECTION 3.3. Appointment to Fill a Vacancy in Office of Trustee . 23
SECTION 3.4. Paying Agents . . . . . . . . . . . . . . . . . . . . 23
SECTION 3.5. Written Statement to Trustee . . . . . . . . . . . . 23
SECTION 3.6. Limitation on Liens . . . . . . . . . . . . . . . . . 24
SECTION 3.7. Limitation on Sales and Leasebacks . . . . . . . . . 25
ARTICLE IV.
SECURITYHOLDERS' LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1. Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders . . . . . . . . . . . 27
SECTION 4.2. Preservation and Disclosure of Securityholders' Lists 27
SECTION 4.3. Reports by the Issuer . . . . . . . . . . . . . . . . 28
SECTION 4.4. Reports by the Trustee . . . . . . . . . . . . . . . 29
ARTICLE V.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1. Event of Default Defined; Acceleration of Maturity;
Waiver of Default . . . . . . . . . . . . . . . . . 29
SECTION 5.2. Collection of Indebtedness by Trustee; Trustee May
Prove Debt . . . . . . . . . . . . . . . . . . . . 31
SECTION 5.3. Application of Proceeds . . . . . . . . . . . . . . . 33
SECTION 5.4. Suits for Enforcement . . . . . . . . . . . . . . . . 34
SECTION 5.5. Restoration of Rights on Abandonment of Proceedings . 35
SECTION 5.6. Limitations on Suits by Securityholders . . . . . . . 35
SECTION 5.7. Unconditional Right of Securityholders to Institute
Certain Suits . . . . . . . . . . . . . . . . . . . 35
SECTION 5.8. Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default . . . . . . . . . . . . . . . . . 35
SECTION 5.9. Control by Holders of Securities . . . . . . . . . . 36
SECTION 5.10. Waiver of Past Defaults . . . . . . . . . . . . . . . 36
SECTION 5.11. Trustee to Give Notice of Default . . . . . . . . . . 37
SECTION 5.12. Right of Court to Require Filing of Undertaking to
Pay Costs . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE VI.
CONCERNING THE TRUSTEE
SECTION 6.1. Duties and Responsibilities of the Trustee; During
Default; Prior to Default . . . . . . . . . . . . . 38
SECTION 6.2. Certain Rights of the Trustee . . . . . . . . . . . . 39
SECTION 6.3. Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof . . . 40
SECTION 6.4. Trustee and Agents May Hold Securities; Collections,
etc . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 6.5. Moneys Held by Trustee . . . . . . . . . . . . . . . 40
SECTION 6.6. Compensation and Indemnification of Trustee and Its
Prior Claim . . . . . . . . . . . . . . . . . . . . 40
SECTION 6.7. Right of Trustee to Rely on Officers' Certificate,
etc . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 6.8. Qualification of Trustee . . . . . . . . . . . . . . 41
SECTION 6.9. Persons Eligible for Appointment as Trustee . . . . . 41
SECTION 6.10. Resignation and Removal; Appointment of Successor
Trustee . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 6.11. Acceptance of Appointment by Successor Trustee . . . 43
SECTION 6.12. Merger, Conversion, Consolidation or Succession to
Business of Trustee . . . . . . . . . . . . . . . . 44
SECTION 6.13. Preferential Collection of Claims Against the Issuer 44
ARTICLE VII.
CONCERNING THE SECURITYHOLDERS
SECTION 7.1. Evidence of Action Taken by Securityholders . . . . . 48
SECTION 7.2. Proof of Execution of Instruments and of Holding of
Securities . . . . . . . . . . . . . . . . . . . . 48
SECTION 7.3. Holders to be Treated as Owners . . . . . . . . . . . 48
SECTION 7.4. Securities Owned by Issuer Deemed Not Outstanding . . 48
SECTION 7.5. Right of Revocation of Action Taken . . . . . . . . . 49
ARTICLE VIII.
SUPPLEMENTAL INDENTURES
SECTION 8.1. Supplemental Indentures Without Consent of
Securityholders . . . . . . . . . . . . . . . . . . 49
SECTION 8.2. Supplemental Indentures With Consent of
Securityholders . . . . . . . . . . . . . . . . . . 50
SECTION 8.3. Effect of Supplemental Indenture . . . . . . . . . . 52
SECTION 8.4. Documents to Be Given to Trustee . . . . . . . . . . 52
SECTION 8.5. Notation on Securities in Respect of Supplemental
Indentures . . . . . . . . . . . . . . . . . . . . 52
ARTICLE IX.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1. Issuer May Consolidate, etc., on Certain Terms . . . 52
SECTION 9.2. Successor Issuer Substituted . . . . . . . . . . . . 52
SECTION 9.3. Opinion of Counsel to Trustee . . . . . . . . . . . . 53
ARTICLE X.
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 10.1. Satisfaction and Discharge of Indenture. . . . . . . 53
SECTION 10.2. Application of Trust Money. . . . . . . . . . . . . . 54
SECTION 10.3. Defeasance Upon Deposit of Funds or Government
Obligations. . . . . . . . . . . . . . . . . . . 54
SECTION 10.4. Repayment of Moneys Held by Paying Agent. . . . . . . 55
SECTION 10.5. Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Three Years . . . . . . . . . . . . . 56
ARTICLE XI.
MISCELLANEOUS PROVISIONS
SECTION 11.1. Incorporators, Stockholders, Officers and Directors
of Issuer Exempt from Individual Liability . . . . 56
SECTION 11.2. Provisions of Indenture for the Sole Benefit of
Parties and Holders of Securities . . . . . . . . . 56
SECTION 11.3. Successors and Assigns of Issuer Bound by Indenture . 56
SECTION 11.4. Notices and Demands on Issuer, Trustee and Holders of
Securities . . . . . . . . . . . . . . . . . . . . 56
SECTION 11.5. Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein . . . . . . . . 57
SECTION 11.6. Payments Due on Saturdays, Sundays and Holidays . . . 58
SECTION 11.7. Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939 . . . . . . . . . . . . . . . 58
SECTION 11.8. New York Law to Govern . . . . . . . . . . . . . . . 58
SECTION 11.9. Counterparts . . . . . . . . . . . . . . . . . . . . 58
SECTION 11.10. Effect of Headings . . . . . . . . . . . . . . . . . 58
SECTION 11.11. Securities in a Foreign Currency or in ECU . . . . . 58
SECTION 11.12. Judgment Currency . . . . . . . . . . . . . . . . . . 60
ARTICLE XII.
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1. Applicability of Article . . . . . . . . . . . . . . 60
SECTION 12.2. Notice of Full and Partial Redemption; Partial
Redemptions . . . . . . . . . . . . . . . . . . . . 60
SECTION 12.3. Payment of Securities Called for Redemption . . . . . 61
SECTION 12.4. Exclusion of Certain Securities from Eligibility for
Selection for Redemption . . . . . . . . . . . . . 62
SECTION 12.5. Mandatory and Optional Sinking Funds . . . . . . . . 62
THIS INDENTURE, dated as of ________, 1996 between C. R. BARD,
INC., a New Jersey corporation (the "Issuer"), and The Chase Manhattan Bank,
N.A., a national banking association duly organized and existing under the
laws of the United States of America, not in its individual capacity, but
solely as Trustee (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue from time to
time of its unsecured and unsubordinated debentures, notes or other evidences
of indebtedness to be issued in one or more series (the "Securities") up to
such principal amount or amounts as may from time to time be authorized in
accordance with the terms of this Indenture and, to provide, among other
things, for the authentication, delivery and administration thereof, the
Issuer has duly authorized the execution and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done.
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the holders thereof, the Issuer and the Trustee mutually
covenant and agree for the equal and proportionate benefit of the respective
holders from time to time of the Securities as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1. Certain Terms Defined. The following terms
(except as otherwise expressly provided or unless the context otherwise
clearly requires) for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in this
Section. All other terms used in this Indenture that are defined in the Trust
Indenture Act of 1939 or the definitions of which in the Securities Act of
1933 are referred to in the Trust Indenture Act of 1939, including terms
defined therein by reference to the Securities Act of 1933 (except as herein
otherwise expressly provided or unless the context otherwise clearly
requires), shall have the meanings assigned to such terms in said Trust
Indenture Act and in said Securities Act as in force at the date of this
Indenture. All accounting terms used herein and not expressly defined shall
have the meanings assigned to such terms in accordance with generally accepted
accounting principles, and the term "generally accepted accounting principles"
means such accounting principles as are generally accepted at the time of any
computation. The words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision. The terms defined in this Article have
the meanings assigned to them in this Article and include the plural as well
as the singular.
"Attributable Debt" means, as to any particular lease under which
any Person is at the time liable, 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, discounted from the
respective due dates thereof to such date at the then-current weighted average
rate per annum borne by the Securities then Outstanding compounded semi-
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, insurance, taxes, assessments, water
rates, contingent rents (such as those based on sales) and similar charges.
In the case of any lease which is terminable by the lessee upon the payment of
a penalty, such net amount shall also include the amount of such penalty, but
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.
"Board of Directors" means either the Board of Directors of the
Issuer or any committee of such Board duly authorized to act on its behalf.
"Board Resolution" means a copy of one or more resolutions,
certified by the secretary or an assistant secretary of the Issuer to have
been duly adopted by the Board of Directors and to be in full force and
effect, and delivered to the Trustee.
"Business Day" means, with respect to any Security, a day that is
not a day on which banking institutions are authorized or required by law or
regulation to be closed (a) in the City of New York or (b) if the currency in
which the Security is denominated is other than Dollars, the financial center
of the country issuing the currency in which the Security is denominated
(which, in the case of ECU, shall be Brussels, Belgium).
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or if at any time after the execution and delivery of this Indenture
such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties on such
date.
"Consolidated Net Worth" means, with respect to any Person as of
any date, all amounts that would be included under stockholders' equity on a
consolidated balance sheet of such Person determined in accordance with
generally accepted accounting principles.
"Corporate Trust Office" means the office of the Trustee at which
the corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office of The Chase Manhattan Bank, N.A. at
the date of the execution of this Indenture is located at 4 Chase MetroTech
Center, Brooklyn, New York 11245.
"Debt", unless otherwise specified, shall have the meaning set
forth in Section 3.6.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of one or more Global Securities, the Person
designated as Depositary by the Issuer pursuant to Section 2.3 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or
include each Person who is then a Depositary hereunder, and if at any time
there is more than one such Person, "Depositary" as used with respect to the
Securities of any such series shall mean the Depositary with respect to the
Global Securities of that series.
"Dollar" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public
and private debts.
"Domestic Subsidiary" means a Subsidiary except a Subsidiary
which (i) (a) neither transacts any substantial portion of its business nor
regularly maintains any substantial portion of its fixed assets within the
United States or (b) which is engaged primarily in financing the operations of
the Issuer or its Subsidiaries, or both, outside the United States and (ii)
does not own, indirectly or directly, a Subsidiary other than a Subsidiary
described in the preceding clause (i).
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of European Communities.
"European Communities" shall have the meaning set forth in
Section 11.11(b)
"Event of Default" shall have the meaning set forth in Section
5.1.
"Foreign Currency" means a currency issued by the government of a
country other than the United States.
"Funded Debt" means all indebtedness for money borrowed having a
maturity of more than 12 months from the date of the most recent quarterly
balance sheet of the Issuer and its consolidated subsidiaries or having a
maturity of less than 12 months but by its terms being renewable or extendible
beyond 12 months from the date of such balance sheet at the option of the
borrower.
"Global Security" means a Security evidencing all or a part of a
series of Securities, issued to the Depositary for such series in accordance
with Section 2.4, and bearing the legend prescribed in Section 2.4.
"Holder", "holder of Securities", "Securityholder" or other
similar terms mean the person in whose name such Security is registered in the
security register kept by or on behalf of the Issuer for that purpose in
accordance with the terms hereof.
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended or
supplemented or both, and shall include the forms and terms of particular
series of Securities established as contemplated hereunder.
"Interest" means, when used with respect to non-interest bearing
Securities, interest payable after maturity.
"Issuer" means (except as otherwise provided in Article Six) C.
R. Bard, Inc. and, subject to Article Nine, its successors and assigns.
"Issuer Order" means a written statement, request or order of the
Issuer signed in its name by the chairman of the Board of Directors, any vice
chairman of the Board of Directors, the chief executive officer, the
president, any vice president or the treasurer of the Issuer.
"Mortgage" shall have the meaning set forth in Section 3.6.
"Officers' Certificate" means a certificate signed by the
chairman of the Board of Directors, any vice chairman of the Board of
Directors, the chief executive officer, the president or any vice president
and by the treasurer or the secretary or any assistant secretary of the Issuer
and delivered to the Trustee. Each such certificate shall include the
statements provided for in Section 11.5.
"Opinion of Counsel" means an opinion in writing signed by the
general corporate counsel or such other legal counsel who may be an employee
of or counsel to the Issuer. Each such opinion shall include the statements
provided for in Section 11.5, if and to the extent required thereby.
"Original Issue Date" of any Security (or portion thereof) means
the earlier of (a) the date of such Security or (b) the date of any Security
(or portion thereof) for which such Security was issued (directly or
indirectly) on registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to
Section 5.1.
"Outstanding" (except as otherwise provided in Section 6.8), when
used with reference to Securities, shall, subject to the provisions of Section
7.4, mean, as of any particular time, all Securities authenticated and
delivered by the Trustee under this Indenture, except
(a) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or
redemption of which moneys or government obligations (as provided for in
Section 10.3) in the necessary amount shall have been deposited in trust
with the Trustee or with any paying agent (other than the Issuer) or shall
have been set aside, segregated and held in trust by the Issuer for the
holders of such Securities (if the Issuer shall act as its own paying
agent), provided that if such Securities, or portions thereof, are to be
redeemed prior to the maturity thereof, notice of such redemption shall
have been given as herein provided, or provision satisfactory to the
Trustee shall have been made for giving such notice; and
(c) Securities in substitution for which other Securities shall
have been authenticated and delivered, or which shall have been paid,
pursuant to the terms of Section 2.9 (except with respect to any such
Security as to which proof satisfactory to the Trustee and the Issuer is
presented that such Security is held by a person in whose hands such
Security is a legal, valid and binding obligation of the Issuer).
In determining whether the holders of the requisite principal
amount of Outstanding Securities of any or all series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of an Original Issue Discount Security that shall be deemed
to be Outstanding for such purposes shall be the amount of the principal
thereof that would be due and payable as of the date of such determination
upon a declaration of acceleration of the maturity thereof pursuant to Section
5.1.
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"principal", whenever used with reference to the Securities or
any Security or any portion thereof, shall be deemed to include "and premium,
if any".
"Principal Property" means any single manufacturing plant
(including production machinery and equipment located thereon) located within
the United States and which is owned or leased by the Issuer or any Domestic
Subsidiary, and the gross book value (without deduction of any depreciation
reserves) of which on the date as of which the determination is being made
exceeds 1 1/2% of the Consolidated Net Worth of the Issuer, other than any
such plant or portion thereof which, in the opinion of the Board of Directors,
is not of material importance to the total business conducted by the Issuer
and its Subsidiaries as an entirety. "Manufacturing plant" does not include
any plant owned or leased jointly or in common with one or more Persons other
than the Issuer and its Domestic Subsidiaries in which the aggregate interest
of the Issuer and its Domestic Subsidiaries does not exceed fifty percent
(50%). "Production machinery and equipment" means production machinery and
equipment in such manufacturing plants used directly in the production of the
Issuer's or any Domestic Subsidiary's products and does not include office
equipment, computer equipment, rolling stock and other equipment not directly
used in the production of the Issuer's or any Domestic Subsidiary's products.
"Responsible Officer" when used with respect to the Trustee means
any officer within the Corporate Trust Office including any Vice President,
Managing Director, Assistant Vice President, Secretary, Assistant Secretary or
any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also, with respect
to a particular matter, any other officer to whom such matter is referred
because of such officer's knowledge and familiarity with the particular
subject.
"Security" or "Securities" (except as otherwise provided in
Section 6.8) has the meaning stated in the first recital of this Indenture,
or, as the case may be, Securities that have been authenticated and delivered
under this Indenture.
"Subsidiary" means a corporation a majority of the outstanding
voting stock of which is owned, directly or indirectly, by the Issuer or by
one or more subsidiaries of the Issuer, or by the Issuer and one or more
subsidiaries of the Issuer.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Six, shall also
include any successor trustee.
"Trust Indenture Act of 1939" (except as otherwise provided in
Sections 8.1 and 8.2) means the Trust Indenture Act of 1939, as amended, as in
force at the date as of which this Indenture was originally executed.
"vice president", when used with respect to the Issuer or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title of "vice president".
"Yield to Maturity" means the yield to maturity on a series of
securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
ARTICLE II.
SECURITIES
SECTION 2.1. Forms Generally. The Securities of each series
shall be substantially in such form (not inconsistent with this Indenture) as
shall be established by or pursuant to one or more Board Resolutions (as set
forth in a Board Resolution or, to the extent established pursuant to rather
than set forth in such Board Resolution, an Officers' Certificate detailing
such establishment) or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have
imprinted or otherwise reproduced thereon such legend or legends or
endorsements, not inconsistent with the provisions of this Indenture, as may
be required to comply with any law or with any rules or regulations pursuant
thereto, or with any rules of any securities exchange or to conform to general
usage, all as may be determined by the officers executing such Securities as
evidenced by their execution of the Securities.
The definitive Securities may be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities as evidenced by their
execution of such Securities.
SECTION 2.2. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
_______________________,
as Trustee
By
Authorized Officer
SECTION 2.3. Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities that may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall
be established in or pursuant to one or more Board Resolutions of the Board of
Directors and set forth in a Board Resolution, or to the extent established
pursuant to (rather than set forth in) such Board Resolution in an Officers'
Certificate detailing such establishment, and/or established in one or more
indentures supplemental hereto, prior to the initial issuance of Securities of
any series,
(1) the designation of the Securities of the series (which may
be part of a series of Securities previously issued);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration and transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 2.8, 2.9, 2.11 or 12.3);
(3) any date on which the principal of the Securities of the
series is payable;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which such interest
shall accrue, on which such interest shall be payable and on which a
record shall be taken for the determination of Holders to whom interest is
payable and/or the method by which such rate or rates or date or dates
shall be determined and the basis on which interest shall be calculated if
other than a 360-day year consisting of twelve 30-day months;
(5) the place or places where the principal of or any interest
on Securities of the series shall be payable (if other than as provided in
Section 3.2);
(6) the price or prices at which, the period or periods within
which and the terms and conditions upon which Securities of the series may
be redeemed, in whole or in part, at the option of the Issuer, pursuant to
any sinking fund or otherwise;
(7) the obligation, if any, of the Issuer to redeem, purchase or
repay Securities of the series pursuant to any mandatory redemption,
sinking fund or analogous provisions or at the option of a Holder thereof
and the price or prices at which and the period or periods within which
and any terms and conditions upon which Securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
(8) if other than denominations of $1,000 and any multiple of
$1,000 thereafter, the denominations in which Securities of the series
shall be issuable;
(9) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof;
(10) the currency or currencies or currency unit or currency
units in which the Securities of that series are denominated (including
but not limited to Dollars, any Foreign Currency or ECU) and the aggregate
principal amount of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and delivered
upon registration and transfer of, or in exchange for, or in lieu of,
other Securities of such series pursuant to this Indenture);
(11) if other than the currency or currencies or currency unit
or currency units in which the Securities of that series are denominated,
the currency or currencies or currency unit or currency units in which
payment of the principal of, premium, if any, or interest on the
Securities of such series shall or may be payable;
(12) if the principal of, premium, if any, or interest on the
Securities of such series are to be payable, at the election of the Issuer
or a holder thereof, in a currency or currencies or currency unit or
currency units other than that in which the Securities are denominated,
the period or periods within which, and the terms and conditions upon
which, such election may be made;
(13) if the amount of payments of principal of, premium, if any,
and interest on the Securities of the series may be determined with
reference to an index based on a currency or currencies or currency unit
or currency units other than that in which the Securities of the series
are denominated, the manner in which such amount shall be determined;
(14) whether the Securities of the series are to be convertible
or exchangeable for other securities of the Issuer or any other Person and
the terms and conditions thereof;
(15) whether any of the Securities of the series will be
issuable as Global Securities;
(16) any trustees, depositaries, authenticating or paying
agents, transfer agents or registrars or any other agents with respect to
the Securities of such series; and
(17) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
SECTION 2.4. Authentication and Delivery of Securities. The
Issuer may deliver Securities of any series executed by the Issuer to the
Trustee for authentication together with the applicable documents referred to
below in this Section, and the Trustee shall thereupon authenticate and
deliver such Securities to or upon the order of the Issuer (contained in the
Issuer Order referred to below in this Section), or pursuant to such
procedures acceptable to the Trustee and to such recipients as may be
specified from time to time by an Issuer Order. The maturity date, Original
Issue Date, interest rate and any other terms of the Securities of such series
shall be determined by or pursuant to such Issuer Order and procedures. In
authenticating such Securities and accepting the additional responsibilities
under this Indenture in relation to such Securities the Trustee shall be
entitled to receive, and (subject to Section 6.1) shall be fully protected in
conclusively relying upon:
(1) an Issuer Order requesting such authentication and setting
forth delivery instructions if the Securities are not to be delivered to
the Issuer;
(2) any Board Resolution, Officers' Certificate and/or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or pursuant
to which the forms and terms of the Securities were established;
(3) an Officers' Certificate setting forth the form and terms of
the Securities stating that the form and terms of the Securities have been
established pursuant to Sections 2.1 and 2.3 and comply with this
Indenture, and covering such other matters as the Trustee may reasonably
request; and
(4) an Opinion of Counsel to the effect that:
(a) the form or forms and terms of such Securities have
been established pursuant to Sections 2.1 and 2.3 and comply with
this Indenture, and
(b) such Securities when authenticated and delivered by
the Trustee and issued by the Issuer in the manner and subject to
any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Issuer,
enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Issuer
or if the Trustee in good faith by its board of directors or board of
trustees, executive committee, or a trust committee of directors or trustees
or Responsible Officers shall determine that such action would expose the
Trustee to personal liability to existing Holders.
If the Issuer shall establish pursuant to Section 2.3 that the
Securities of a series are to be issued in the form of one or more Global
Securities, then the Issuer shall execute and the Trustee shall, in accordance
with this Section and the Issuer Order with respect to such series,
authenticate and deliver one or more Global Securities that (i) shall
represent and shall be denominated in an amount equal to the aggregate
principal amount of all of the Securities of such series issued and not yet
canceled, (ii) shall be registered in the name of the Depositary for such
Global Security or Securities or the nominee of such Depositary, (iii) shall
be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instructions and (iv) shall bear a legend substantially to the
following effect: "Unless and until it is exchanged in whole or in part for
Securities in definitive registered form, this Security may not be transferred
except as a whole by the Depositary to the nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary."
Each Depositary designated pursuant to Section 2.3 must, at the
time of its designation and at all times while it serves as Depositary, be a
clearing agency registered under the Securities Exchange Act of 1934 and any
other applicable statute or regulation.
SECTION 2.5. Execution of Securities. The Securities shall be
signed on behalf of the Issuer by the chairman of its Board of Directors, any
vice chairman of its Board of Directors, its chief executive officer, its
president, any vice president or its treasurer. Such signature may be the
manual or facsimile signature of the present or any future such officers. The
seal of the Issuer may be (but need not be) impressed, affixed, imprinted or
otherwise reproduced on the Securities and may be a facsimile thereof.
Typographical and other minor errors or defects in any such reproduction of
the seal or any such signature shall not affect the validity or enforceability
of any Security that has been duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of
the Securities shall cease to be such officer before the Security so signed
shall be authenticated and delivered by the Trustee or disposed of by the
Issuer, such Security nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Security had not ceased to be
such officer of the Issuer; and any Security may be signed on behalf of the
Issuer by such persons as, at the actual date of the execution of such
Security, shall be the proper officers of the Issuer, although at the date of
the execution and delivery of this Indenture any such person was not such an
officer.
SECTION 2.6. Certificate of Authentication. Only such
Securities as shall bear thereon a certificate of authentication substantially
in the form hereinbefore recited, executed by the Trustee by the manual
signature of one of its authorized officers, shall be entitled to the benefits
of this Indenture or be valid or obligatory for any purpose. Such certificate
by the Trustee upon any Security executed by the Issuer shall be conclusive
evidence that the Security so authenticated has been duly authenticated and
delivered hereunder and that the holder is entitled to the benefits of this
Indenture.
SECTION 2.7. Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable as registered
securities without coupons and in denominations established as contemplated by
Section 2.3 or, if not so established, in denominations of $1,000 and any
multiple thereof. The Securities of each series shall be numbered, lettered
or otherwise distinguished in such manner or in accordance with such plan as
the officers of the Issuer executing the same may determine with the approval
of the Trustee as evidenced by the execution and authentication thereof.
Each Security shall be dated the date of its authentication. The
Securities of each series shall bear interest, if any, from the date, and such
interest shall be payable on the dates, established as contemplated by Section
2.3.
The person in whose name any Security of any series is registered
at the close of business on any record date applicable to a particular series
with respect to any interest payment date for such series shall be entitled to
receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the
extent the Issuer shall default in the payment of the interest due on such
interest payment date for such series, in which case such defaulted interest
shall be paid to the persons in whose names Outstanding Securities for such
series are registered at the close of business on a subsequent record date
(which shall be not less than five Business Days prior to the date of payment
of such defaulted interest) established by notice given by mail by or on
behalf of the Issuer to the holders of Securities not less than 15 days
preceding such subsequent record date. The term "record date" as used with
respect to any interest payment date (except a date for payment of defaulted
interest) for the Securities of any series shall mean the date specified as
such in the terms of the Securities of such series established as contemplated
by Section 2.3.
SECTION 2.8. Registration, Transfer and Exchange. The Issuer
will keep or cause to be kept at each office or agency to be maintained for
the purpose as provided in Section 3.2 for each series of Securities a
register or registers in which, subject to such reasonable regulations as it
may prescribe, it will provide for the registration of Securities of such
series and the registration of transfer of Securities of such series. Such
register shall be in written form in the English language or in any other form
capable of being converted into such form within a reasonable time. At all
reasonable times such register or registers shall be open for inspection by
the Trustee.
Upon due presentation for registration of transfer of any
Security of any series at any such office or agency to be maintained for the
purpose as provided in Section 3.2, the Issuer shall execute and the Trustee
shall authenticate and deliver in the name of the transferee or transferees a
new Security or Securities of the same series, maturity date, interest rate
and Original Issue Date in authorized denominations for a like aggregate
principal amount.
At the option of the Holder thereof, Securities of any series
(except a Global Security) may be exchanged for a Security or Securities of
such series, maturity date, interest rate and Original Issue Date of other
authorized denominations and of a like aggregate principal amount, upon
surrender of such Securities to be exchanged at the agency of the Issuer which
shall be maintained for such purpose in accordance with Section 3.2 and upon
payment, if the Issuer shall so require, of the charges hereinafter provided.
Whenever any Securities are so surrendered for exchange, the Issuer shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive. All Securities
surrendered upon any exchange or transfer provided for in this Indenture shall
be promptly canceled and destroyed by the Trustee and the Trustee will deliver
a certificate of destruction thereof to the Issuer.
All Securities presented for registration of transfer, exchange,
redemption or payment shall (if so required by the Issuer or the Trustee) be
duly endorsed by, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Issuer and the Trustee duly executed by,
the holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
exchange or registration of transfer of Securities. No service charge shall
be made for any such transaction.
The Issuer shall not be required to exchange or register a
transfer of (a) any Securities of any series for a period of 15 days next
preceding the first mailing of notice of redemption of Securities of such
series to be redeemed or (b) any Securities selected, called or being called
for redemption, in whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not so to be redeemed.
Notwithstanding any other provision of this Section 2.8, unless
and until it is exchanged in whole or in part for Securities in definitive
registered form, a Global Security representing all or a portion of the
Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or any such nominee to a successor
Depositary for such series or a nominee of such successor Depositary.
If at any time the Depositary for any Securities of a series
represented by one or more Global Securities notifies the Issuer that it is
unwilling or unable to continue as Depositary for such Securities or if at any
time the Depositary for such Securities shall no longer be eligible under
Section 2.4, the Issuer shall appoint a successor Depositary with respect to
such Securities. If a successor Depositary for such Securities is not
appointed by the Issuer within 90 days after the Issuer receives such notice
or becomes aware of such ineligibility, the Issuer's election pursuant to
Section 2.3 that such Securities be represented by one or more Global
Securities shall no longer be effective and the Issuer will execute, and the
Trustee, upon receipt of an Officer's Certificate for the authentication and
delivery of definitive Securities of such series, will authenticate and
deliver, Securities of such series in definitive registered form without
coupons, in any authorized denominations, in an aggregate principal amount
equal to the principal amount of the Global Security or Securities
representing such Securities in exchange for such Global Security or
Securities.
The Issuer may at any time and in its sole discretion determine
that the Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by a Global Security or Securities.
In such event the Issuer will execute, and the Trustee, upon receipt of an
Officer's Certificate for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver, Securities of such
series in definitive registered form, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the Global
Security or Securities representing such Securities, in exchange for such
Global Security or Securities.
If specified by the Issuer pursuant to Section 2.3 with respect
to Securities represented by a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in whole or in part
for Securities of the same series in definitive registered form on such terms
as are acceptable to the Issuer and such Depositary. Thereupon, the Issuer
shall execute, and the Trustee shall authenticate and deliver, without service
charge,
(i) to the Person specified by such Depositary a new Security
or Securities of the same series, of any authorized denominations as
requested by such Person, in an aggregate principal amount equal to and in
exchange for such Person's beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security in a
denomination equal to the difference, if any, between the principal amount
of the surrendered Global Security and the aggregate principal amount of
Securities authenticated and delivered pursuant to clause (i) above.
Upon the exchange of a Global Security for Securities in
definitive registered form, in authorized denominations, such Global Security
shall be canceled by the Trustee. Securities in definitive registered form
issued in exchange for a Global Security pursuant to this Section 2.8 shall be
registered in such names and in such authorized denominations as the
Depositary for such Global Security, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the Trustee in writing.
The Trustee shall deliver such Securities to or as directed by the Persons in
whose names such Securities are so registered.
All Securities issued upon any transfer or exchange of Securities
shall be valid obligations of the Issuer, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
SECTION 2.9. Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security shall become
mutilated, defaced or be destroyed, lost or stolen, the Issuer in its
discretion may execute, and upon the written request of any officer of the
Issuer, the Trustee shall authenticate and deliver, a new Security of the same
series, maturity date, interest rate and Original Issue Date, bearing a number
or other distinguishing symbol not contemporaneously outstanding, in exchange
and substitution for the mutilated or defaced Security, or in lieu of and
substitution for the Security so destroyed, lost or stolen. In every case the
applicant for a substitute Security shall furnish to the Issuer and to the
Trustee and any agent of the Issuer or the Trustee such security or indemnity
as may be required by them to indemnify and defend and to save each of them
harmless and, in every case of destruction, loss or theft, evidence to their
satisfaction of the destruction, loss or theft of such Security and of the
ownership thereof.
Upon the issuance of any substitute Security, the Issuer may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee) connected therewith. In case any Security which
has matured or is about to mature or has been called for redemption in full
shall become mutilated or defaced or be destroyed, lost or stolen, the Issuer
may instead of issuing a substitute Security, pay or authorize the payment of
the same (without surrender thereof except in the case of a mutilated or
defaced Security), if the applicant for such payment shall furnish to the
Issuer and to the Trustee and any agent of the Issuer or the Trustee such
security or indemnity as any of them may require to save each of them
harmless, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Issuer and the Trustee and any agent of the Issuer
or the Trustee evidence to their satisfaction of the destruction, loss or
theft of such Security and of the ownership thereof.
Every substitute Security of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual
obligation of the Issuer, 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 (but shall be subject to all the limitations of rights set
forth in) this Indenture equally and proportionately with any and all other
Securities of such series duly authenticated and delivered hereunder. All
Securities shall be held and owned upon the express condition that, to the
extent permitted by law, the foregoing provisions are exclusive with respect
to the replacement or payment of mutilated, defaced or destroyed, lost or
stolen Securities and shall preclude any and all other rights or remedies
notwithstanding any law or statute existing or hereafter enacted to the
contrary with respect to the replacement or payment of negotiable instruments
or other securities without their surrender.
SECTION 2.10. Cancellation of Securities; Destruction Thereof.
All Securities surrendered for payment, redemption, registration of transfer
or exchange, or for credit against any payment in respect of a sinking or
analogous fund, if surrendered to the Issuer or any agent of the Issuer or the
Trustee, shall be delivered to the Trustee for cancellation or, if surrendered
to the Trustee, shall be canceled by it; and no Securities shall be issued in
lieu thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee shall destroy canceled Securities held by it and
deliver a certificate of destruction to the Issuer. If the Issuer shall
acquire any of the Securities, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are delivered to the Trustee for cancellation.
SECTION 2.11. Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as Securities, of any authorized denomination, and substantially in
the form of the definitive Securities of such series but with such omissions,
insertions and variations as may be appropriate for temporary Securities of
such series, all as may be determined by the Issuer with the concurrence of
the Trustee as evidenced by the execution and authentication thereof.
Temporary Securities may contain such reference to any provisions of this
Indenture as may be appropriate. Every temporary Security shall be executed
by the Issuer and be authenticated by the Trustee upon the same conditions and
in substantially the same manner, and with like effect, as the definitive
Securities. Without unreasonable delay the Issuer shall execute and shall
furnish definitive Securities of such series and thereupon temporary
Securities of such series may be surrendered in exchange therefor without
charge at each office or agency to be maintained by the Issuer for that
purpose pursuant to Section 3.2, and the Trustee shall authenticate and
deliver in exchange for such temporary Securities of such series a like
aggregate principal amount of definitive Securities of the same series of
authorized denominations. Until so exchanged, the temporary Securities of any
series shall be entitled to the same benefits under this Indenture as
definitive Securities of such series, unless otherwise established pursuant to
Section 2.3.
ARTICLE III.
COVENANTS OF THE ISSUER
SECTION 3.1. Payment of Principal and Interest. The Issuer
covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay or cause to be paid the principal of, and interest on,
each of the Securities of such series (together with any additional amounts
payable pursuant to the terms of such Securities) at the place or places, at
the respective times and in the manner provided in such Securities and in this
Indenture. The interest on Securities (together with any additional amounts
payable pursuant to the terms of such Securities) shall be payable only to or
upon the written order of the Holders thereof and at the option of the Issuer
may be paid (i) by mailing checks to or upon the written order of such Holders
at their last addresses as they appear on the registry books of the Issuer or
(ii) by wire transfer to bank accounts maintained by such Holders.
Notwithstanding any provisions of this Indenture and the
Securities of any series to the contrary, if the Issuer and a Holder of any
Security so agree or if expressly provided pursuant to Section 2.3, payments
of interest on, and any portion of the principal of, such Holder's Security
(other than interest payable at maturity or on any redemption or repayment
date or the final payment of principal on such Security) shall be made by the
Paying Agent, upon receipt from the Issuer of the immediately available funds
by 11:00 a.m., New York City time (or such other time as may be agreed to
between the Issuer and the Paying Agent), directly to the Holder of such
Security (by Federal funds wire transfer or otherwise) if the Holder has
delivered written instructions to the Trustee 15 days prior to such payment
date requesting that such payment will be so made and designating the bank
account to which such payments shall be so made and in the case of payments of
principal surrenders the same to the Trustee in exchange for a Security or
Securities aggregating the same principal amount as the unredeemed principal
amount of the Securities surrendered. The Trustee shall be entitled to rely
on the last instruction delivered by the Holder pursuant to this Section 3.1
unless a new instruction is delivered 15 days prior to a payment date. The
Issuer will indemnify and hold each of the Trustee and any Paying Agent
harmless against any loss, liability or expense (including attorneys' fees)
resulting from any act or omission to act on the part of the Issuer or any
such Holder in connection with any such agreement or from making any payment
in accordance with any such agreement.
SECTION 3.2. Offices for Payments, etc. The Issuer will
maintain or cause to be maintained in The City of New York, an agency where
the Securities of each series may be presented for payment, an agency where
the Securities of each series may be presented for exchange as is provided in
this Indenture and, if applicable, pursuant to Section 2.3, an agency where
the Securities of each series may be presented for registration of transfer as
in this Indenture provided.
The Issuer will maintain or cause to be maintained in The City of
New York, an agency where notices and demands to or upon the Issuer in respect
of the Securities of any series or this Indenture may be served. The Issuer
will give to the Trustee written notice of the location of each such agency
and of any change of location thereof.
In case the Issuer shall fail to maintain any such agency in The
City of New York, or shall fail to give such notice of the location or of any
change in the location thereof, presentations and demands may be made and
notices may be served at the Corporate Trust Office of the Trustee.
The Issuer may from time to time designate one or more agencies
where the Securities of a series may be presented for payment, where the
Securities of that series may be presented for exchange as provided in this
Indenture and pursuant to Section 2.3 and where the Securities of that series
may be presented for registration of transfer as in this Indenture provided,
and the Issuer may from time to time rescind any such designation, as the
Issuer may deem desirable or expedient; provided, however, that no such
designation or rescission shall in any manner relieve the Issuer of its
obligation to maintain the agencies provided for in the immediately preceding
paragraphs. The Issuer will give to the Trustee prompt written notice of any
such designation or rescission thereof.
SECTION 3.3. Appointment to Fill a Vacancy in Office of
Trustee. The Issuer, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 6.10, a
Trustee, so that there shall at all times be a Trustee with respect to each
series of Securities hereunder.
SECTION 3.4. Paying Agents. Whenever the Issuer shall appoint
a paying agent other than the Trustee with respect to the Securities of any
series, it will cause such paying agent to execute and deliver to the Trustee
an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section,
(a) that it will hold all sums received by it as such agent for
the payment of the principal of or interest, if any, on the Securities of
such series (whether such sums have been paid to it by the Issuer or by
any other obligor on the Securities of such series) in trust for the
benefit of the Holders of the Securities of such series, or of the
Trustee, and
(b) that it will give the Trustee notice of any failure by the
Issuer (or by any other obligor on the Securities of such series) to make
any payment of the principal of or interest, if any, on the Securities of
such series when the same shall be due and payable.
The Issuer will, on or prior to each due date of the principal of
or interest on the Securities of such series, deposit with the paying agent a
sum sufficient to pay such principal or interest so becoming due, and (unless
such paying agent is the Trustee) the Issuer will promptly notify the Trustee
of any failure to take such action.
If the Issuer shall act as its own paying agent with respect to
the Securities of any Series, it will, on or before each due date of the
principal of or interest on the Securities of such series, set aside,
segregate and hold in trust for the benefit of the Holders of the Securities
of such series a sum sufficient to pay such principal or interest so becoming
due. The Issuer will promptly notify the Trustee of any failure to take such
action.
Anything in this Section to the contrary notwithstanding, the
Issuer may at any time, for the purpose of obtaining a satisfaction and
discharge with respect to one or more or all series of Securities hereunder,
or for any other reason, pay or cause to be paid to the Trustee all sums held
in trust for any such series by the Issuer or any paying agent hereunder, as
required by this Section, such sums to be held by the Trustee upon the trusts
herein contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 10.4 and 10.5.
SECTION 3.5. Written Statement to Trustee. The Issuer will
deliver to the Trustee on or before March 31 in each year (commencing in 1997)
a written statement, signed by two of its officers (which need not comply with
Section 11.5), stating that in the course of the performance of their duties
as officers of the Issuer they would normally have knowledge of any default by
the Issuer in the performance or fulfillment of any covenant, agreement or
condition contained in this Indenture, stating whether or not they have
knowledge of any such default and, if so, specifying each such default of
which the signers have knowledge and the nature thereof.
SECTION 3.6. Limitation on Liens. The Issuer will not itself,
and will not permit any Domestic Subsidiary to, incur, issue, assume or
guarantee any notes, bonds, debentures or other indebtedness for money
borrowed (notes, bonds, debentures or other indebtedness for money borrowed
being hereinafter in this Article called "Debt"), secured by the pledge of, or
a mortgage or lien on, any Principal Property of the Issuer or any Domestic
Subsidiary, or any shares of stock of or Debt of any Domestic Subsidiary (such
mortgages, pledges and liens being hereinafter in this Article called
"Mortgage" or "Mortgages"), without effectively providing that the Securities
(together with, if the Issuer shall so determine, any other Debt of the Issuer
or such Domestic Subsidiary then existing or thereafter created which is not
subordinate to the Securities) shall be secured equally and ratably with (or
prior to) such secured Debt, so long as such secured Debt shall be so secured,
unless, after giving effect thereto, the aggregate amount of all such secured
Debt plus all Attributable Debt of the Issuer and its Domestic Subsidiaries in
respect of sale and leaseback transactions (as defined in Section 3.7) would
not exceed 10% of Shareholders' Equity; provided, however, that this Section
shall not apply to, and there shall be excluded from secured Debt in any
computation under this Section, Debt secured by:
(1) Mortgages on property of, or on any shares of stock of or
Debt of, any corporation existing at the time such corporation becomes a
Domestic Subsidiary or arising thereafter pursuant to contractual
commitments entered into prior to and not in contemplation of such
corporation's becoming a Domestic Subsidiary;
(2) Mortgages in favor of the Issuer or any Domestic Subsidiary;
(3) Mortgages in favor of the United States of America or any
state thereof, or any department, agency or instrumentality or political
subdivision of the United States of America or any state thereof, or in
favor of any other country, or any political subdivision thereof, or in
favor of any trustee or mortgagee acting on behalf, or for the benefit of,
any of the foregoing, to secure partial, progress, advance or other
payments pursuant to any contract or statute and any other Mortgages
incurred or assumed in connection with the issuance of industrial revenue
or private activity bonds the interest of which is exempt from Federal
income taxation pursuant to Section 103(b) of the Internal Revenue Code of
1986, as amended;
(4) Mortgages on property, shares of stock or Debt existing at
the time of acquisition thereof (including acquisition through merger or
consolidation) by the Issuer or a Domestic Subsidiary or securing the
payment of all or any part of the purchase price thereof or securing any
Debt incurred prior to, at the time of, or within 120 days after, in the
case of Mortgages on property, the later of the acquisition, or the
completion of construction (including any improvements, alterations or
repairs to existing property), which secured Debt is incurred, assumed, or
guaranteed for the purpose of financing all or any part of the purchase
price thereof or construction or improvements, alterations or repairs
thereon; provided, however, that in the case of any such acquisition,
construction or improvement, alteration or repair, the Mortgage shall not
apply to any property theretofore owned by the Issuer or a Domestic
Subsidiary, other than, in the case of any such construction or
improvement, any theretofore unimproved real property or portion thereof
on which the property so constructed, or the improvement, is located and
any other property not then constituting a Principal Property;
(5) Mortgages existing, or provided for under the terms
of any agreements existing, on the first date on which a Security is
authenticated by the Trustee;
(6) Mortgages securing judgement or appeal bonds in respect
of amounts being contested in good faith by appropriate proceedings;
(7) Mortgages incurred or assumed in connection with taxes,
assessments, governmental charges or claims which are not delinquent or
which are being contested in good faith pursuant to appropriate
proceedings;
(8) Mortgages arising by operation of law pursuant to Section
107(1) of the Federal Comprehensive Environmental Response, Compensation
and Liability Act or any similar state law; provided, such Mortgage does
not secure any single obligation for an amount exceeding $10 million; and
(9) Any extension, renewal or replacement (or successive
extensions, renewals or replacements), as a whole or in part, of any
Mortgage referred to in the foregoing clauses (1) to (8), inclusive;
provided, that such extension, renewal or replacement Mortgage shall
be limited to all or a part of the same property, shares of stock or
Debt that secured the Mortgage extended, renewed or replaced (plus
improvements on such property).
SECTION 3.7. Limitation on Sales and Leasebacks. The Issuer
will not itself, and it will not permit any Domestic Subsidiary to, enter into
any arrangement with any bank, insurance company or other lender or investor,
or to which any such lender or investor is a party, which arrangement provides
for the leasing by the Issuer or a Domestic Subsidiary for a period, including
renewals, in excess of five years of any Principal Property which has been or
is to be sold or transferred more than 120 days after the acquisition of such
Principal Property, or the completion of construction including any
improvements or alterations on real property, or commencement of full
operation thereof, by the Issuer or such Domestic 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:
(1) the Issuer or such Domestic Subsidiary could create
Debt secured by a Mortgage pursuant to Section 3.6 on the Principal
Property to be leased in an amount equal to the Attributable Debt with
respect to such sale and leaseback transaction without equally and
ratably securing the Securities, or
(2) the Issuer, within 120 days after the sale or
transfer, applies an amount equal to the greater of (i) the net
proceeds of the sale of the Principal Property leased pursuant to such
arrangement or (ii) the fair market value of the Principal Property so
leased at the time of entering into such arrangement (as determined by
any two of the following: the President, any Vice President of the
Issuer, and its Treasurer) to the retirement or repayment (other than
at maturity or pursuant to a mandatory sinking fund or mandatory
redemption provision) of Funded Debt other than the Securities or, if
an insufficient amount of Funded Debt other than the Securities
exists, the Securities after retirement of any other Funded Debt;
provided that the amount to be applied to such retirement of Funded
Debt of the Issuer shall be reduced by (a) the principal amount of any
Securities delivered within 120 days after such sale to the Trustee
for retirement and cancellation and (b) the principal amount of Funded
Debt, other than Securities, voluntarily retired by the Issuer within
120 days after such sale. Notwithstanding the foregoing, no
retirement referred to in this clause (2) may be effected by payment
at maturity or pursuant to any mandatory sinking fund payment or any
mandatory prepayment provision;
provided, further, the covenant contained in this Section 3.7 shall not apply
in any computation under Section 3.6 or this Section 3.7 to (and there shall
be no Attributable Debt with respect to), any sale and leaseback transaction
if:
(1) such sale and leaseback transaction is entered into
in connection with the issuance of industrial revenue or private
activity bonds the interest of which is exempt from Federal income
taxation pursuant to Section 103(b) of the Internal Revenue Code of
1986, as amended;
(2) such sale and leaseback transaction is entered into prior
to, at the time of, or within 120 days after the later of the acquisition
of the Principal Property or the completion of construction thereon;
(3) the Issuer or a Domestic Subsidiary applies an amount
equal to the net proceeds (after repayment of any secured Debt secured
by a Mortgage encumbering such Principal Property which secured Debt
existed immediately before such sale and leaseback transaction) of the
sale or transfer of the Principal Property leased pursuant to such
sale and leaseback transaction to investment (whether for acquisition,
improvement, repair, alteration or construction costs) in another
Principal Property within one year prior or subsequent to such sale or
transfer;
(4) such sale and leaseback transaction was entered into
by a Person prior to the date on which such Person, if other than the
Company, became a Domestic Subsidiary or arises thereafter pursuant to
contractual commitments entered into by such Person prior to and not
in contemplation of such Person's becoming a Domestic Subsidiary;
(5) such sale and leaseback transaction was entered into
by a Person prior to the time such Person, if other than the Company,
was merged or consolidated with the Issuer or a Domestic Subsidiary or
prior to the time of a sale, lease or other disposition of the
properties of such Person as an entirety or substantially as an
entirety to the Issuer or a Domestic Subsidiary or arises thereafter
pursuant to contractual commitments entered into by such Person prior
to and not in contemplation of such merger, consolidation, sale, lease
or other disposition; or
(6) such sale and leaseback transaction is entered into between
the Issuer and a Domestic Subsidiary or between Domestic Subsidiaries.
ARTICLE IV.
SECURITYHOLDERS' LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1. Issuer to Furnish Trustee Information as to Names
and Addresses of Securityholders. The Issuer covenants and agrees that it
will furnish or cause to be furnished to the Trustee a list in such form as
the Trustee may reasonably require of the names and addresses of the holders
of the Securities of each series:
(a) semiannually and not more than 15 days after each
record date for the payment of interest on such Securities, as
hereinabove specified, as of such record date and on dates to be
determined pursuant to Section 2.3 for non-interest bearing securities
in each year, and
(b) at such other times as the Trustee may request in
writing, within 30 days after receipt by the Issuer of any such
request as of a date not more than 15 days prior to the time such
information is furnished,
provided that if and so long as the Trustee shall be the Security registrar
for such series, such list shall not be required to be furnished.
SECTION 4.2. Preservation and Disclosure of Securityholders'
Lists. (a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the holders of
each series of Securities (i) contained in the most recent list furnished to
it as provided in Section 4.1, (ii) received by it in the capacity of Security
registrar for such series, if so acting and (iii) filed with it within two
preceding years pursuant to 4.4(c)(ii). The Trustee may destroy any list
furnished to it as provided in Section 4.1 upon receipt of a new list so
furnished.
(b) In case three or more holders of Securities (hereinafter
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 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 a particular series (in which case the applicants
must all hold Securities of such series) or with Holders of all Securities
with respect to their rights under this Indenture or under such Securities and
such application 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 to such applicants access to the information
preserved at the time by the Trustee in accordance with the provisions
of subsection (a) of this Section, or
(ii) inform such applicants as to the approximate number
of holders of Securities of such series or all Securities, as the case
may be, whose names and addresses appear in the information preserved
at the time by the Trustee, in accordance with the provisions of
subsection (a) of this Section, and as to the approximate cost of
mailing to such Securityholders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants
access to such information, the Trustee shall, upon the written request of
such applicants, mail to each Securityholder of such series or all Securities,
as the case may be, whose name and address appears in the information
preserved at the time by the Trustee in accordance with the provisions of
subsection (a) of this Section a copy of the form of proxy or other
communication which is specified in such request, with reasonable promptness
after a tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of mailing; otherwise
the Trustee shall be relieved of any obligation or duty to such applicants
respecting their application.
(c) Each and every holder of Securities, by receiving and
holding the same, agrees with the Issuer and the Trustee that neither the
Issuer nor the Trustee nor any agent of the Issuer or the Trustee shall be
held accountable by reason of the disclosure of any such information as to the
names and addresses of the holders of Securities in accordance with the
provisions of Section 4.1 or this Section, 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
subsection (b) of this Section.
SECTION 4.3. Reports by the Issuer. The Issuer covenants:
(a) to file with the Trustee, within 15 days after the
Issuer is required to file the same with the Commission, copies of the
annual reports and of the information, documents, and other reports
(or copies of such portions of any of the foregoing as the Commission
may from time to time by rules and regulations prescribe) which the
Issuer may be required to file with the Commission pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934; if the
Issuer is not required to file information, documents, or reports
pursuant to either of such Sections, then to file with the Trustee and
the Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary and
periodic information, documents, and reports which may be required
pursuant to Section 13 of the Securities Exchange Act of 1934, in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(b) to 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 Issuer with the conditions and
covenants provided for in this Indenture as may be required from time
to time by such rules and regulations; and
(c) to transmit by mail to the holders of Securities, in
the manner and to the extent provided in Section 4.4(c), such
summaries of any information, documents and reports required to be
filed by the Issuer pursuant to subsections (a) and (b) of this
Section as may be required to be transmitted to such Holders by rules
and regulations prescribed from time to time by the Commission.
SECTION 4.4. Reports by the Trustee. (a) Within 60 days
after each May 15, beginning with the May 15 following the date of this
Indenture, the Trustee shall transmit to the Securityholders of each series a
brief report dated as of such reporting date that complies with Section 313(a)
of the Trust Indenture Act of 1939, if such a report is required pursuant to
Section 313(a) of the Trust Indenture Act of 1939. The Trustee also shall
comply with Section 313(b) of the Trust Indenture Act of 1939. The Trustee
shall also transmit all reports as required by Section 313(c) of the Trust
Indenture Act of 1939.
(b) A copy of each such report shall, at the time of such
transmission to Securityholders, be furnished to the Issuer and be filed by
the Trustee with each stock exchange upon which the Securities of any
applicable series are listed and also with the Commission. The Issuer agrees
to notify the Trustee with respect to any series when and as the Securities of
such series become admitted to trading on any national securities exchange.
ARTICLE V.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1. Event of Default Defined; Acceleration of
Maturity; Waiver of Default. "Event of Default" with respect to Securities of
any series wherever used herein, means each one of the following events which
shall have occurred and be continuing (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any installment of interest
upon any of the Securities of such series as and when the same shall
become due and payable, and continuance of such default for a period
of 30 days;
(b) default in the payment of all or any part of the
principal on any of the Securities of such series as and when the same
shall become due and payable either at maturity, upon redemption, by
declaration or otherwise;
(c) default in the payment of any sinking fund
installment as and when the same shall become due and payable by the
terms of the Securities of such series;
(d) default in the performance, or breach, of any
covenant or warranty of the Issuer in respect of the Securities of
such series (other than a covenant or warranty in respect of the
Securities of such series a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with), and
continuance of such default or breach for a period of 90 days after
there has been given, by registered or certified mail, to the Issuer
by the Trustee or to the Issuer and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Securities of all
series affected thereby, a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is
a "Notice of Default" hereunder;
(e) a court having jurisdiction in the premises shall
enter a decree or order for relief in respect of the Issuer in an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee or sequestrator (or similar
official) of the Issuer or for any substantial part of its property or
ordering the winding up or liquidation of its affairs, and such decree
or order shall remain unstayed and in effect for a period of 60
consecutive days;
(f) the Issuer shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consent to the entry of an order for relief in
an involuntary case under any such law, or consent to the appointment
of or taking possession by a receiver, liquidator, assignee,
custodian, trustee or sequestrator (or similar official) of the Issuer
or for any substantial part of its property, or make any general
assignment for the benefit of creditors; or
(g) any other Event of Default provided in a supplemental
indenture or resolution of the Board of Directors under which such
series of Securities is issued or in the form of Security for such
series.
If an Event of Default described in clauses (a), (b), (c), (d) or (g) above
(if the Event of Default under clause (d) or (g) is with respect to less than
all series of Securities then Outstanding) occurs and is continuing, then, and
in each and every such case, unless the principal of all of the Securities of
such series shall have already become due and payable, either the Trustee or
the Holders of not less than 25% in aggregate principal amount of the
Securities of such series then Outstanding hereunder (each such series voting
as a separate class) by notice in writing to the Issuer (and to the Trustee if
given by Securityholders), may declare the entire principal (or, if the
Securities of such series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of such series) of
all Securities of such series and the interest accrued thereon, if any, to be
due and payable immediately, and upon any such declaration the same shall
become immediately due and payable. If an Event of Default described in
clauses (d) or (g) (if the Event of Default under clause (d) or (g) is with
respect to all series of Securities then Outstanding) or (e) or (f) occurs and
is continuing, then and in each and every such case, unless the principal of
all the Securities shall have already become due and payable, either the
Trustee or the Holders of not less than 25% in the aggregate principal amount
of all the Securities then Outstanding hereunder (treated as one class), by
notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if any Securities are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of all the Securities then outstanding and
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration the same shall become immediately due and payable.
The foregoing provisions, however, are subject to the condition
that if, at any time after the principal (or, if the Securities are Original
Issue Discount Securities, such portion of the principal as may be specified
in the terms thereof) of the Securities of any series (or of all the
Securities, as the case may be) shall have been so declared due and payable,
and before any judgment or decree for the payment of the moneys due shall have
been obtained or entered as hereinafter provided, the Issuer shall pay or
shall deposit with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Securities of such series (or of all the
Securities, as the case may be) and the principal of any and all Securities of
such series (or of all the Securities, as the case may be) which shall have
become due otherwise than by acceleration (with interest upon such principal
and, to the extent that payment of such interest is enforceable under
applicable law, on overdue installments of interest, at the same rate as the
rate of interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series, (or at the respective
rates of interest or Yield to Maturity of all the Securities, as the case may
be) to the date of such payment or deposit) and such amount as shall be
sufficient to cover reasonable compensation to the Trustee, its agents,
attorneys and counsel, and all other reasonable expenses and liabilities
incurred, and all reasonable advances made, by the Trustee except as a result
of negligence or bad faith, and if any and all Events of Default under the
Indenture, other than the non-payment of the principal of Securities which
shall have become due by acceleration, shall have been cured, waived or
otherwise remedied as provided herein -- then and in every such case the
holders of a majority in aggregate principal amount of all the Securities of
such series, each series voting as a separate class, (or of all the
Securities, as the case may be, voting as a single class) then outstanding, by
written notice to the Issuer and to the Trustee, may waive all defaults with
respect to such series (or with respect to all the Securities, as the case may
be) and rescind and annul such declaration and its consequences, but no such
waiver or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been
accelerated and declared due and payable pursuant to the provisions hereof,
then, from and after such declaration, unless such declaration has been
rescinded and annulled, the principal amount of such Original Issue Discount
Securities shall be deemed, for all purposes hereunder, to be such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the principal thereof as shall be
due and payable as a result of such acceleration, together with interest, if
any, thereon and all other amounts owing thereunder, shall constitute payment
in full of such Original Issue Discount Securities.
SECTION 5.2. Collection of Indebtedness by Trustee; Trustee
May Prove Debt. The Issuer covenants that in case (a) default shall be made
in the payment of any installment of interest on any of the Securities of any
series when such interest shall have become due and payable, and such default
shall have continued for a period of 30 days or (b) default shall be made in
the payment of all or any part of the principal of any of the Securities of
any series when the same shall have become due and payable, whether upon
maturity of the Securities of such series or upon any redemption or by
declaration or otherwise, then in either such case, upon demand of the
Trustee, the Issuer will pay to the Trustee for the benefit of the Holders of
the Securities of such series the whole amount that then shall have become due
and payable on all Securities of such series for principal or interest, as the
case may be (with interest to the date of such payment upon the overdue
principal and, to the extent that payment of such interest is enforceable
under applicable law, on overdue installments of interest at the same rate as
the rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Securities of such series); and in
addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including reasonable compensation to the
Trustee and each predecessor Trustee, their respective agents, attorneys and
counsel, and any expenses and liabilities incurred, and all advances made, by
the Trustee and each predecessor Trustee except as a result of its negligence
or bad faith.
In case the Issuer shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any action or proceedings at law
or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may
enforce any such judgment or final decree against the Issuer or other obligor
upon such Securities and collect in the manner provided by law out of the
property of the Issuer or other obligor upon such Securities, wherever
situated, the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Issuer
or any other obligor upon the Securities under Title 11 of the United States
Code or any other applicable Federal or state bankruptcy, insolvency or
similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property or such other
obligor, or in case of any other comparable judicial proceedings relative to
the Issuer or other obligor upon the Securities of any series, or to the
creditors or property of the Issuer or such other obligor, the Trustee,
irrespective of whether the principal of any Securities shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand pursuant to the provisions
of this Section, shall be entitled and empowered, by intervention in such
proceedings or otherwise:
(a) to file and prove a claim or claims for the whole
amount of principal and interest (or, if the Securities of any series
are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) owing and
unpaid in respect of the Securities of any series, and to file such
other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for reasonable
compensation to the Trustee and each predecessor Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all
expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee, except as a result of negligence
or bad faith) and of the Securityholders allowed in any judicial
proceedings relative to the Issuer or other obligor upon the
Securities of any series, or to the creditors or property of the
Issuer or such other obligor,
(b) unless prohibited by applicable law and regulations,
to vote on behalf of the holders of the Securities of any series in
any election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency
proceedings or person performing similar functions in comparable
proceedings, and
(c) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of the Securityholders and
of the Trustee on their behalf; and any trustee, receiver, or
liquidator, custodian or other similar official is hereby authorized
by each of the Securityholders to make payments to the Trustee, and,
in the event that the Trustee shall consent to the making of payments
directly to the Securityholders, to pay to the Trustee such amounts as
shall be sufficient to cover reasonable compensation to the Trustee,
each predecessor Trustee and their respective agents, attorneys and
counsel, and all reasonable expenses and liabilities incurred, and all
reasonable advances made, by the Trustee and each predecessor Trustee
except as a result of negligence or bad faith and all other amounts
due to the Trustee or any predecessor Trustee pursuant to Section 6.6.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan or reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities of any series, may be enforced by
the Trustee without the possession of any of the Securities of such series or
the production thereof on any trial or other proceedings relative thereto, and
any such action or proceedings instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment,
subject to the payment of reasonable expenses, disbursements and compensation
of the Trustee, each predecessor Trustee and their respective agents and
attorneys, shall be for the ratable benefit of the holders of the Securities
in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the holders of the Securities in respect to which such action was taken, and
it shall not be necessary to make any holders of such Securities parties to
any such proceedings.
SECTION 5.3. Application of Proceeds. Any moneys collected by
the Trustee pursuant to this Article in respect of any series shall be applied
in the following order at the date or dates fixed by the Trustee and, in case
of the distribution of such moneys on account of principal or interest, upon
presentation of the several Securities in respect of which monies have been
collected and stamping (or otherwise noting) thereon the payment, or issuing
Securities of such series in reduced principal amounts in exchange for the
presented Securities of like series if only partially paid, or upon surrender
thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to
such series in respect of which monies have been collected, including
reasonable compensation to the Trustee and each predecessor Trustee
and their respective agents and attorneys and of all reasonable
expenses and liabilities incurred, and all reasonable advances made,
by the Trustee and each predecessor Trustee except as a result of
negligence or bad faith, and all other amounts due to the Trustees or
any predecessor Trustee pursuant to Section 6.6;
SECOND: In case the principal of the Securities of such
series in respect of which moneys have been collected shall not have
become and be then due and payable, to the payment of interest on the
Securities of such series in default in the order of the maturity of
the installments of such interest, with interest (to the extent that
such interest has been collected by the Trustee) upon the overdue
installments of interest at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities)
specified in such Securities, such payments to be made ratably to the
persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such
series in respect of which moneys have been collected shall have
become and shall be then due and payable, to the payment of the whole
amount then owing and unpaid upon all the Securities of such series
for principal and interest, with interest upon the overdue principal,
and (to the extent that such interest has been collected by the
Trustee) upon overdue installments of interest at the same rate as the
rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Securities of such series; and
in case such moneys shall be insufficient to pay in full the whole
amount so due and unpaid upon the Securities of such series, then to
the payment of such principal and interest or Yield to Maturity,
without preference or priority of principal over interest or Yield to
Maturity, or of interest or Yield to Maturity over principal, or of
any installment of interest over any other installment of interest, or
of any Security of such series over any other Security of such series,
ratably to the aggregate of such principal and accrued and unpaid
interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the
Issuer or any other person lawfully entitled thereto.
SECTION 5.4. Suits for Enforcement. In case an Event of
Default has occurred, has not been waived and is continuing, the Trustee may
in its discretion (but shall not be obligated to) proceed to protect and
enforce the rights vested in it by this Indenture by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce
any of such rights, either at law in equity or in bankruptcy or otherwise,
whether for the specific enforcement of any covenant or agreement contained in
this Indenture or in aid of the exercise of any power granted in this
Indenture or to enforce any other legal or equitable right vested in the
Trustee by this Indenture or by law.
SECTION 5.5. Restoration of Rights on Abandonment of
Proceedings. In case the Trustee shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely to the
Trustee, then and in every such case the Issuer and the Trustee shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Issuer, the Trustee and the Securityholders
shall continue as though no such proceedings had been taken.
SECTION 5.6. Limitations on Suits by Securityholders. No
holder of any Security of any series shall have any right by virtue or by
availing of any provision of this Indenture to institute any action or
proceeding at law or in equity or in bankruptcy or otherwise upon or under or
with respect to this Indenture, or for the appointment of a trustee, receiver,
liquidator, custodian or other similar official or for any other remedy
hereunder, unless such holder previously shall have given to the Trustee
written notice of default and of the continuance thereof, as hereinbefore
provided, and unless also the holders of not less than 25% in aggregate
principal amount of the Securities of such series then outstanding shall have
made written request upon the Trustee to institute such action or proceedings
in its own name as trustee hereunder and shall have offered to the Trustee
such reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby and the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity shall have
failed to institute any such action or proceeding and no direction
inconsistent with any such action or proceeding and no direction inconsistent
with such written request shall have been given to the Trustee pursuant to
Section 5.9; it being understood and intended, and being expressly covenanted
by the taker and Holder of every Security with every other taker and Holder
and the Trustee, that no one or more Holders of Securities of any series shall
have any right in any manner whatever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of any
other such Holder of Securities, or to obtain or seek to obtain priority over
or preference to any other such Holder or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of the applicable series. For the
protection and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 5.7. Unconditional Right of Securityholders to
Institute Certain Suits. Notwithstanding any other provision in this
Indenture and any provision of any Security, the right of any Holder of any
Security to receive payment of the principal of and interest on such Security
on or after the respective due dates expressed in such Security, or to
institute suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of
such Holder.
SECTION 5.8. Powers and Remedies Cumulative; Delay or Omission
Not Waiver of Default. Except as otherwise provided in Section 5.6 and with
respect to the replacement or payment of mutilated, defaced or destroyed, lost
or stolen Securities in the last sentence of Section 2.9, no right or remedy
herein conferred upon or reserved to the Trustee or to the holders of
Securities is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any holder of
Securities to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power or
shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 5.6, every power and remedy
given by this Indenture or by law to the Trustee or to the holders of
Securities may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the holders of Securities.
SECTION 5.9. Control by Holders of Securities. The Holders of
a majority in aggregate principal amount of the Securities of each series
affected (with each series voting as a separate class) at the time outstanding
shall have the right to direct the time, method, and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee with respect to the Securities of such series
by this Indenture; provided that such direction shall not be otherwise than in
accordance with law and the provisions of this Indenture and provided further
that (subject to the provisions of Section 6.1) the Trustee shall have the
right to decline to follow any such direction if the Trustee, being advised by
counsel, shall determine that the action or proceeding so directed may not
lawfully be taken or if the Trustee in good faith by its board of directors,
the executive committee, or a trust committee of directors or responsible
officers of the Trustee shall determine that the action or proceedings so
directed would involve the Trustee in personal liability or if the Trustee in
good faith shall so determine that the actions or forebearances specified in
or pursuant to such direction would be unduly prejudicial to the interests of
Holders of the Securities of all series so affected not joining in the giving
of said direction, it being understood that (subject to Section 6.1) the
Trustee shall have no duty to ascertain whether or not such actions or
forebearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Trustee
in its discretion to take any action deemed proper by the Trustee and which is
not inconsistent with such direction or directions by Securityholders.
SECTION 5.10. Waiver of Past Defaults. Prior to the
declaration of the acceleration of the maturity of the Securities of any
series as provided in Section 5.1, the Holders of a majority in aggregate
principal amount of the Securities of such series at the time Outstanding may
on behalf of the Holders of all the Securities of such series waive any past
default or Event of Default described in clause (c) of Section 5.1 (or, in the
case of an event specified in clause (d) or (g) of Section 5.1 which related
to less than all series of Securities then Outstanding, the Holders of a
majority in aggregate principal amount of the Securities then Outstanding
affected thereby (each series voting as a separate class) may waive any such
default or Event of Default, or, in the case of an event specified in clause
(d) or (g) (if the Event of Default under clause (d) or (g) relates to all
series of Securities then Outstanding), (e) or (f) of Section 5.1 the Holders
of Securities of a majority in principal amount of all the Securities then
Outstanding (voting as one class) may waive any such default or Event of
Default), and its consequences except a default in respect of a covenant or
provision hereof which cannot be modified or amended without the consent of
the Holder of each Security affected. In the case of any such waiver, the
Issuer, the Trustee and the Holders of the Securities of such series shall be
restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or impair any
right consequent thereon.
Upon any such waiver, such default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured, and not to have occurred
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
The Issuer may, in the circumstances permitted by the Trust
Indenture Act of 1939, fix any day as the record date for the purpose of
determining the Holders of Securities of any series entitled to give or take
any request, demand, authorization, direction, notice, consent, waiver or
other action, or to vote on any action, authorized or permitted to be given or
taken by Holders of Securities of such series under Section 5.9 or this
Section. If not set by the Issuer prior to the first solicitation of a Holder
of Securities of such series made by any Person in respect of any such action,
or, in the case of any such vote, prior to such vote, the record date for any
such action or vote shall be the 30th day (or, if later, the date of the most
recent list of Holders required to be provided pursuant to Section 4.1) prior
to such first solicitation or vote, as the case may be. With regard to any
record date for action to be taken by the Holders of one or more series of
Securities, only the Holders of Securities of such series on such date (or
their duly designated proxies) shall be entitled to give or take, or vote on,
the relevant action.
SECTION 5.11. Trustee to Give Notice of Default. The Trustee
shall, within ninety days after the occurrence of a default with respect to
the Securities of any series, give notice of all defaults with respect to that
series actually known to a Responsible Officer of the Trustee to all Holders
of then Outstanding Securities of that series, by mailing such notice to such
Holders at their addresses as they shall appear in the registry books, unless
in each case such defaults shall have been cured before the mailing or
publication of such notice (the term "defaults" for the purpose of this
Section being hereby defined to mean any event or condition which is, or with
notice or lapse of time or both would become, an Event of Default).
SECTION 5.12. Right of Court to Require Filing of Undertaking
to Pay Costs. All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Securityholder or
group of Securityholders of any series holding in the aggregate more than 10%
in aggregate principal amount of the Securities Outstanding of such series,
or, in the case of any suit relating to or arising under clause (d) or (g) of
Section 5.1 (if the suit relates to Securities of more than one but less than
all series), 10% in aggregate principal amount of Securities Outstanding
affected thereby, or in the case of any suit relating to or arising under
clause (d) or (g) (if the suit under clause (d) or (g) relates to all the
Securities then Outstanding), (e) or (f) of Section 5.1, 10% in aggregate
principal amount of all Securities Outstanding, or to any suit instituted by
any Securityholder for the enforcement of the payment of the principal of or
interest on any Security on or after the due date expressed in such Security.
ARTICLE VI.
CONCERNING THE TRUSTEE
SECTION 6.1. Duties and Responsibilities of the Trustee;
During Default; Prior to Default. With respect to the Holders of any series
of Securities issued hereunder, the Trustee, prior to the occurrence of an
Event of Default with respect to the Securities of a particular series and
after the curing or waiving of all Events of Default which may have occurred
with respect to such series, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. In case an Event of
Default actually known to a Responsible Officer of the Trustee with respect to
the Securities of a series have occurred (which has not been cured or waived)
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own wilful misconduct, except that
(a) prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing or
waiving of all such Events of Default with respect to such series
which may have occurred:
(i) the duties and obligations of the
Trustee with respect to the Securities of any Series
shall be determined solely by the express provisions
of this Indenture, and the Trustee shall not be
liable except for the performance of such duties and
obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations
shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on the
part of the Trustee, the Trustee may conclusively
rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon
any 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 only to examine the same on
their face to determine whether or not they conform
to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the holders pursuant to Section 5.9 relating to
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require
the Trustee to expend or risk funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if, in its opinion, there shall be reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
liability is not reasonably assured to it.
SECTION 6.2. Certain Rights of the Trustee. Subject to
Section 6.1:
(a) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
Officers' Certificate or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond, debenture,
note, security or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of Directors
may be evidenced to the Trustee by a copy thereof certified by the
secretary or an assistant secretary of the Issuer;
(c) the Trustee may consult with counsel (at the expense
of the Issuer) who may be counsel to the Issuer and any advice or
Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be
taken by it hereunder in good faith and in accordance with such advice
or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise
any of the trusts or powers vested in it by this Indenture at the
request, order or direction of any of the Securityholders pursuant to
the provisions of this Indenture, unless such Securityholders shall
have offered to the Trustee indemnity satisfactory to it against the
costs, expenses and liabilities which might be incurred therein or
thereby;
(e) the Trustee shall not be liable for any action taken
or omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this
Indenture;
(f) prior to the occurrence of an Event of Default
hereunder and after the curing or waiving of all Events of Default,
the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order,
approval, appraisal, bond, debenture, note, security, or other paper
or document unless requested in writing so to do by the holders of not
less than a majority in aggregate principal amount of the Securities
of all series affected then outstanding; provided that, if the payment
within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee, the Trustee may require indemnity satisfactory
to it against such expenses or liabilities as a condition to
proceeding; the reasonable expenses of every such investigation shall
be paid by the Issuer or, if paid by the Trustee or any predecessor
trustee, shall be repaid by the Issuer upon demand; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys not regularly in its employ and the
Trustee shall not be responsible for any misconduct or negligence on
the part of any such agent or attorney appointed with due care by it
hereunder.
SECTION 6.3. Trustee Not Responsible for Recitals, Disposition
of Securities or Application of Proceeds Thereof. The recitals contained
herein and in the Securities, except the Trustee's certificates of
authentication, shall be taken as the statements of the Issuer, and the
Trustee assumes no responsibility for the correctness of the same. The
Trustee makes no representation as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the
use or application by the Issuer of any of the Securities or of the proceeds
thereof.
SECTION 6.4. Trustee and Agents May Hold Securities;
Collections, etc. The Trustee or any agent of the Issuer or the Trustee, in
its individual or any other capacity, may become the owner or pledgee of
Securities with the same rights it would have if it were not the Trustee or
such agent and, subject to Sections 6.8 and 6.13, if operative, may otherwise
deal with the Issuer and receive, collect, hold and retain collections from
the Issuer with the same rights it would have if it were not the Trustee or
such agent.
SECTION 6.5. Moneys Held by Trustee. Subject to the
provisions of Section 10.5 hereof, all moneys received by the Trustee shall,
until used or applied as herein provided, be held in trust for the purposes
for which they were received, but need not be segregated from other funds
except to the extent required by mandatory provisions of law. Neither the
Trustee nor any agent of the Issuer or the Trustee shall be under any
liability for interest on any moneys received by it hereunder.
SECTION 6.6. Compensation and Indemnification of Trustee and
Its Prior Claim. The Issuer covenants and agrees to pay to the Trustee from
time to time, and the Trustee shall be entitled to, reasonable compensation
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) and the Issuer covenants and
agrees to pay or reimburse the Trustee and each predecessor Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or
made by or on behalf of it in connection with this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and
of all agents and other persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad
faith. The Issuer also covenants to indemnify the Trustee and each
predecessor Trustee, its officers, directors, employees and agents for, and to
hold it, its officers, directors, employees and agents harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration of
this Indenture or the trusts hereunder and its duties hereunder, including the
costs and expenses of defending itself against or investigating any claim of
liability in the premises. The obligations of the Issuer under this Section
to compensate and indemnify the Trustee and each predecessor Trustee and to
pay or reimburse the Trustee and each predecessor Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this Indenture. Such
additional indebtedness shall be a senior claim to that of the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the benefit of the holders of particular Securities, and the
Securities are hereby subordinated to such senior claim.
SECTION 6.7. Right of Trustee to Rely on Officers'
Certificate, etc. Subject to Sections 6.1 and 6.2, whenever in the
administration of the trusts of this Indenture the Trustee shall deem it
necessary or desirable that a matter be provided or established prior to
taking or suffering or omitting any action hereunder, such matter (unless
other evidence in respect thereof be herein specifically prescribed) may, in
the absence of gross negligence or bad faith on the part of the Trustee, be
deemed to be conclusively provided and established by an Officers' Certificate
delivered to the Trustee, and such certificate, in the absence of gross
negligence or bad faith on the part of the Trustee, shall be full warrant to
the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 6.8. Qualification of Trustee. The Trustee is subject
to Section 310(b) of the Trust Indenture Act of 1939 regarding
disqualification of a trustee upon acquiring any conflicting interest.
SECTION 6.9. Persons Eligible for Appointment as Trustee. The
Trustee for each series of Securities hereunder shall at all times be a
corporation organized and doing business under the laws of the United States
of America or of any state or the District of Columbia (or a Person permitted
to act as trustee by the Commission) having a combined capital and surplus of
at least $50,000,000, and which is authorized under such laws to exercise
corporate trust powers and is subject to supervision or examination by
Federal, state or District of Columbia authority. Such corporation or Person
shall have a place of business in Chicago, Illinois or the Borough of
Manhattan, The City of New York if there be such a corporation or Person in
such location willing to act upon reasonable and customary terms and
conditions. If such corporation or Person publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation or Person shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. Such corporation or Person shall not be and shall
represent that it is not an obligor on the Securities or a person directly or
indirectly controlling, controlled by, or under common control with such
obligor. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 6.10.
SECTION 6.10. Resignation and Removal; Appointment of Successor
Trustee. (a) The Trustee, or any trustee or trustees hereafter appointed,
may at any time resign with respect to one or more or all series of Securities
by giving written notice of resignation to the Issuer and, if required by
applicable law or regulations, by mailing notice of such resignation to the
Holders of then Outstanding Securities of each series affected at their
addresses as they shall appear on the registry books. Upon receiving such
notice of resignation, the Issuer shall promptly appoint a successor trustee
or trustees with respect to the applicable series by written instrument in
duplicate, executed by authority of the Board of Directors, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee or trustees. If no successor trustee shall have been so
appointed with respect to any series and have accepted appointment within 30
days after the mailing of such notice of resignation, the resigning trustee
may petition any court of competent jurisdiction for the appointment of a
successor trustee, or any Securityholder who has been a bona fide Holder of a
Security or Securities of the applicable series for at least six months may,
subject to the provisions of Section 5.12, on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor
trustee. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 6.8 with respect to any series of Securities after written request
therefor by the Issuer or by any Securityholder who has been a bona fide
Holder of a Security or Securities of such series for at least six months;
or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 6.9 and shall fail to resign after written
request therefor by the Issuer or by any Securityholder; or
(iii) the Trustee shall become incapable of acting with respect
to any series of Securities, or shall be adjudged a bankrupt or insolvent,
or a receiver or liquidator of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such
series by written instrument, in duplicate, executed by order of the Board of
Directors of the Issuer, one copy of which instrument shall be delivered to
the Trustee so removed and one copy to the successor trustee, or, subject to
the provisions of Section 5.12, any Securityholder who has been a bona fide
Holder of a Security or Securities of such series for at least six months may
on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor trustee with respect to such series. Such court may thereupon,
after such notice, if any, as it may deem proper and prescribe, remove the
Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount
of the Securities of each series at the time outstanding may at any time
remove the Trustee with respect to Securities of such series and appoint a
successor trustee with respect to the Securities of such series by delivering
to the Trustee so removed, to the successor trustee so appointed and to the
Issuer the evidence provided for in Section 7.1 of the action in that regard
taken by the Securityholders.
(d) Any resignation or removal of the Trustee with respect to
any series and any appointment of a successor trustee with respect to such
series pursuant to any of the provisions of this Section 6.10 shall become
effective upon acceptance of appointment by the successor trustee as provided
in Section 6.11.
(e) The retiring Trustee shall not be liable for the acts or
omissions of any successor Trustee hereunder.
(f) Upon appointment of any successor Trustee, all fees, charges
and expenses of the retiring Trustee shall be paid.
SECTION 6.11. Acceptance of Appointment by Successor Trustee.
Any successor trustee appointed as provided in Section 6.10 shall execute and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and
obligations with respect to such series of its predecessor hereunder, with
like effect as if originally named as trustee for such series hereunder; but,
nevertheless, on the written request of the Issuer or of the successor
trustee, upon payment of its charges then unpaid, the trustee ceasing to act
shall, subject to Section 10.5, pay over to the successor trustee all moneys
at the time held by it hereunder and shall execute and deliver an instrument
which, subject to Section 6.6, need not include an indemnity by the Issuer,
transferring to such successor trustee all such rights, powers, duties and
obligations. Upon request of any such successor trustee, the Issuer shall
execute any and all instruments in writing for more fully and certainly
vesting in and confirming to such successor trustee all such rights and
powers. Any trustee ceasing to act shall, nevertheless, retain a prior claim
upon all property or funds held or collected by such trustee to secure any
amounts then due it pursuant to the provisions of Section 6.6.
If a successor trustee is appointed with respect to the
Securities of one or more (but not all) series, the Issuer, the predecessor
Trustee and each successor trustee with respect to the Securities of any
applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the predecessor
Trustee with respect to the Securities of any series as to which the
predecessor Trustee is not retiring shall continue to be vested in the
predecessor Trustee, and shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such trustees co-trustees of the same trust and that each such
trustee shall be trustee of a trust or trusts under separate indentures.
No successor trustee with respect to any series of Securities
shall accept appointment as provided in this Section 6.11 unless at the time
of such acceptance such successor trustee shall be qualified under the
provisions of Section 6.8 and eligible under the provisions of Section 6.9.
Upon acceptance of appointment by any successor trustee as
provided in this Section 6.11, the Issuer shall mail notice thereof to the
Holders of Securities of each series affected, by mailing such notice to such
Holders at their addresses as they shall appear on the registry books. If the
acceptance of appointment is substantially contemporaneous with the
resignation, then the notice called for by the preceding sentence may be
combined with the notice called for by Section 6.10. If the Issuer fails to
mail such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed
at the expense of the Issuer.
SECTION 6.12. Merger, Conversion, Consolidation or Succession
to Business of Trustee. Any corporation into which the Trustee may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to the corporate trust
business of the Trustee, shall be the successor of the Trustee and all other
appointments hereunder; provided, that such corporation shall be qualified
under the provisions of Section 6.8 and eligible under the provisions of
Section 6.9 without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
In case at the time such successor to the Trustee shall succeed
to the trusts created by this Indenture any of the Securities of any series
shall have been authenticated but not delivered, any such successor to the
Trustee may adopt the certificate of authentication of any predecessor Trustee
and deliver such Securities so authenticated; and, in case at that time any of
the Securities of any series shall not have been authenticated, any successor
to the Trustee may authenticate such Securities either in the name of any
predecessor hereunder or in the name of the successor Trustee; and in all such
cases such certificate shall have the full force which it has anywhere in the
Securities of such series or in this Indenture provided that the certificate
of the Trustee shall have; provided, that the right to adopt the certificate
of authentication of any predecessor Trustee or to authenticate Securities of
any series in the name of any predecessor Trustee shall apply only to its
successor or successors by merger, conversion or consolidation.
SECTION 6.13. Preferential Collection of Claims Against the
Issuer. (a) Subject to the provisions of subsection (b) of this
Section, if the Trustee shall be or shall become a creditor, directly or
indirectly, secured or unsecured, of the Issuer within three months prior to a
default, as defined in subsection (c) of this Section, or subsequent to such a
default, then, unless and until such default shall be cured, the Trustee shall
set apart and hold in a special account for the benefit of the Trustee
individually, the Holders of the Securities and the Holders of other indenture
securities (as defined in this Section):
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of principal or
interest, effected after the beginning of such three months' period and
valid as against the Issuer and its other creditors, except any such
reduction resulting from the receipt or disposition of any property
described in subsection (a)(2) of this Section, or from the exercise of
any right of set-off which the Trustee could have exercised if a petition
in bankruptcy had been filed by or against the Issuer upon the date of
such default; and
(2) all property received by the Trustee in respect of any
claim as such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such three
months' period, or an amount equal to the proceeds of any such property,
if disposed of, subject, however, to the rights, if any, of the Issuer and
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
(A) to retain for its own account (i) payments made on
account of any such claim by any person (other than the Issuer) who is
liable thereon, (ii) the proceeds of the bona fide sale of any such claim
by the Trustee to a third person, and (iii) distributions made in cash,
securities or other property in respect of claims filed against the Issuer
in bankruptcy or receivership or in proceedings for reorganization
pursuant to Title 11 of the United States Code or applicable state law;
(B) to realize, for its own account, upon any property held
by it as security for any such claim, if such property was so held prior
to the beginning of such three months' period;
(C) to realize, for its own account, but only to the extent
of the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the beginning
of such three months' period and such property was received as security
therefor simultaneously with the creation thereof, and if the Trustee
shall sustain the burden of proving that at the time such property was so
received the Trustee had no reasonable cause to believe that a default as
defined in subsection (c) of this Section would occur within three months;
or
(D) to receive payment on any claim referred to in paragraph
(B) or (C), against the release of any property held as security for such
claim as provided in such paragraph (B) or (C), as the case may be, to the
extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such three months' period for property held
as security at the time of such substitution shall, to the extent of the fair
value of the property released, have the same status as the property released,
and, to the extent that any claim referred to in any of such paragraphs is
created in renewal of or in substitution for or for the purpose of repaying or
refunding any pre-existing claim of the Trustee as such creditor, such claim
shall have the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and
property held in such special account and the proceeds thereof shall be
apportioned between the Trustee, the Securityholders and the Holders of other
indenture securities in such manner that the Trustee, such Securityholders and
the Holders of other indenture securities realize, as a result of payments
from such special account and payments of dividends on claims filed against
the Issuer in bankruptcy or receivership or in proceedings for reorganization
pursuant to Title 11 of the United States Code or applicable state law, the
same percentage of their respective claims, figured before crediting to the
claim of the Trustee anything on account of the receipt by it from the Issuer
of the funds and property in such special account and before crediting to the
respective claims of the Trustee, such Securityholders and the Holders of
other indenture securities dividends on claims filed against the Issuer in
bankruptcy or receivership or in proceedings for reorganization pursuant to
Title 11 of the United States Code or applicable state law, but after
crediting thereon receipts on account of the indebtedness represented by their
respective claims from all sources other than from such dividends and from the
funds and property so held in such special account. As used in this
paragraph, with respect to any claim, the term "dividends" shall include any
distribution with respect to such claim, in bankruptcy or receivership or in
proceedings for reorganization pursuant to Title 11 of the United States Code
or applicable state law, whether such distribution is made in cash, securities
or other property, but shall not include any such distribution with respect to
the secured portion, if any, of such claim. The court in which such
bankruptcy, receivership or proceeding for reorganization is pending shall
have jurisdiction (i) to apportion between the Trustee, such Securityholders
and the Holders of other indenture securities, in accordance with the
provisions of this paragraph, the funds and property held in such special
account and the proceeds thereof, or (ii) in lieu of such apportionment, in
whole or in part, to give to the provisions of this paragraph due
consideration in determining the fairness of the distributions to be made to
the Trustee, such Securityholders and the Holders of other indenture
securities with respect to their respective claims, in which event it shall
not be necessary to liquidate or to appraise the value of any securities or
other property held in such special account or as security for any such claim,
or to make a specific allocation of such distributions as between the secured
and unsecured portions of such claims, or otherwise to apply the provisions of
this paragraph as a mathematical formula.
Any Trustee who has resigned or been removed after the beginning
of such three months' period shall be subject to the provisions of this
subsection (a) as though such resignation or removal had not occurred. If any
Trustee has resigned or been removed prior to the beginning of such three
months' period, it shall be subject to the provisions of this subsection (a)
if and only if the following conditions exist:
(i) the receipt of property or reduction of claim which would
have given rise to the obligation to account, if such Trustee had
continued as trustee, occurred after the beginning of such three months'
period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection
(a) of this Section a creditor relationship arising from
(1) the ownership or acquisition of securities issued under
any indenture, or any security or securities having a maturity of one year
or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court
of competent jurisdiction or by this Indenture for the purpose of
preserving any property which shall at any time be subject to the lien of
this Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advance and of the circumstances
surrounding the making thereof is given to the Securityholders at the time
and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in
the capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered
or premises rented or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c)(3) of
this Section;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the Federal
Reserve Act, as amended, which is directly or indirectly a creditor of the
Issuer; or
(6) the acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper as defined in
subsection (c)(4) of this Section.
(c) As used in this Section:
(1) the term "default" shall mean any failure to make payment
in full of the principal of or interest upon any of the Securities or upon
the other indenture securities when and as such principal or interest
becomes due and payable;
(2) the term "other indenture securities" shall mean
securities upon which the Issuer is an obligor (as defined in the Trust
Indenture Act of 1939) outstanding under any other indenture (i) under
which the Trustee is also trustee, (ii) which contains provisions
substantially similar to the provisions of subsection (a) of this Section,
and (iii) under which a default existing at the time of the apportionment
of the funds and property held in said special account;
(3) the term "cash transaction" shall mean 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;
(4) the term "self-liquidating paper" shall mean any draft,
bill of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Issuer for the purpose of financing the
purchase, processing, manufacture, 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 Issuer arising from the making, drawing, negotiating
or incurring of the draft, bill of exchange, acceptance or obligation; and
(5) the term "Issuer" shall mean any obligor upon the
Securities.
ARTICLE VII.
CONCERNING THE SECURITYHOLDERS
SECTION 7.1. Evidence of Action Taken by Securityholders. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified
percentage in principal amount of the Securityholders of any or all series may
be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such specified percentage of Securityholders in person
or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee. Proof of execution of any
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and (subject to Sections 6.1 and 6.2) conclusive
in favor of the Trustee and the Issuer, if made in the manner provided in this
Article.
SECTION 7.2. Proof of Execution of Instruments and of Holding
of Securities. Subject to Sections 6.1 and 6.2, the execution of any
instrument by a Securityholder or his agent or proxy may be proved by the
Security register or by a certificate of the Security registrar.
SECTION 7.3. Holders to be Treated as Owners. The Issuer,
the Trustee and any agent of the Issuer or the Trustee may deem and treat the
person in whose name any Security shall be registered upon the Security
register for such series as the absolute owner of such Security (whether or
not such Security shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving payment of or
on account of the principal of and, subject to the provisions of this
Indenture, interest on such Security and for all other purposes; and neither
the Issuer nor the Trustee nor any agent of the Issuer or the Trustee shall be
affected by any notice to the contrary. All such payments so made to any such
person, or upon his order, shall be valid, and, to the extent of the sum or
sums so paid, effectual to satisfy and discharge the liability for moneys
payable upon any such Security.
SECTION 7.4. Securities Owned by Issuer Deemed Not
Outstanding. In determining whether the Holders of the requisite aggregate
principal amount of Outstanding Securities of any or all series have concurred
in any direction, consent or waiver under this Indenture, Securities which are
owned by the Issuer or any other obligor on the Securities with respect to
which such determination is being made or by any person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Issuer or any other obligor on the Securities with respect to which such
determination is being made shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on
any such direction, consent or waiver only Securities which the Trustee knows
are so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes the pledgee's right so to act with respect to such Securities and
that the pledgee is not the Issuer or any other obligor upon the Securities or
any person directly or indirectly controlling or controlled by or under direct
or indirect common control with the Issuer or any other obligor on the
Securities by delivering to the Trustee an Officers' Certificate and Opinion
of Counsel to such effect. In case of a dispute as to such right, the advice
of counsel shall be full protection in respect of any decision made by the
Trustee in accordance with such advice. Upon request of the Trustee, the
Issuer shall furnish to the Trustee promptly an Officers' Certificate listing
and identifying all Securities, if any, known by the Issuer to be owned or
held by or for the account of any of the above-described persons; and, subject
to Sections 6.1 and 6.2, the Trustee shall be entitled to accept such
Officers' Certificate as conclusive evidence of the facts therein set forth
and of the fact that all Securities not listed therein are Outstanding for the
purpose of any such determination.
SECTION 7.5. Right of Revocation of Action Taken. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
7.1, of the taking of any action by the Holders of the percentage in aggregate
principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action, any Holder of a
Security the serial number of which is shown by the evidence to be included
among the serial numbers of the Securities the Holders of which have consented
to such action may, by filing written notice at the Corporate Trust Office and
upon proof of holding as provided in this Article, revoke such action so far
as concerns such Security. Except as aforesaid any such action taken by the
Holder of any Security shall be conclusive and binding upon such Holder and
upon all future Holders and owners of such Security and of any Securities
issued in exchange or substitution therefor, irrespective of whether or not
any notation in regard thereto is made upon any such Security. Any action
taken by the Holders of the percentage in aggregate principal amount of the
Securities of any or all series, as the case may be, specified in this
Indenture in connection with such action shall be conclusively binding upon
the Issuer, the Trustee and the Holders of all the Securities affected by such
action.
ARTICLE VIII.
SUPPLEMENTAL INDENTURES
SECTION 8.1. Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by a resolution of its Board of
Directors, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act of 1939 as in force at the date of the
execution thereof) for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities of one or more series any property
or assets;
(b) to evidence the succession of another corporation to the
Issuer, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Issuer
pursuant to Article Nine;
(c) 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;
(d) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as its Board of
Directors shall consider to be for the protection of the Holders of
Securities, and to make the occurrence, or the occurrence and continuance,
of a default in any such additional covenants, restrictions, conditions or
provisions an Event of Default permitting the enforcement of all or any of
the several remedies provided in this Indenture as herein set forth;
provided, that in respect of any such additional covenant, restriction,
condition or provision such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter or
longer than that allowed in the case of other defaults) or may provide for
an immediate enforcement upon such an Event of Default or may limit the
remedies available to the Trustee upon such an Event of Default or may
limit the right of the Holders of a majority in aggregate principal amount
of the Securities of such series to waive such an Event of Default;
(e) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may be
defective or inconsistent with any other provision contained herein or in
any supplemental indenture; or to make such other provisions in regard to
matters or questions arising under this Indenture or under any
supplemental indenture as the Board of Directors may deem necessary or
desirable and which, in the opinion of the Board of Directors, shall not
adversely affect the interests of the Holders of the Securities; and
(f) to establish the form or terms of Securities of any
series as permitted by Sections 2.1 and 2.3.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed without the consent of the Holders of any of the
Securities at the time outstanding, notwithstanding any of the provisions of
Section 8.2.
SECTION 8.2. Supplemental Indentures With Consent of
Securityholders. With the consent (evidenced as provided in Article Seven) of
the Holders of not less than 66 2/3% in aggregate principal amount of the
Securities at the time Outstanding of all series affected by such supplemental
indenture (voting as one class), the Issuer, when authorized by a resolution
of its Board of Directors, and the Trustee may, from time to time and at any
time, enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act of 1939 as in force at
the date of execution thereof) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture
or of any supplemental indenture or of modifying in any manner the rights of
the Holders of the Securities of each such series; provided, that no such
supplemental indenture shall (a) extend the final maturity of any Security, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any amount payable on redemption
thereof, or make the principal thereof (including any amount in respect of
original issue discount), or interest or premium thereon payable in any coin
or currency other than that provided in the Securities or in accordance with
the terms thereof, or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon an acceleration of the
maturity thereof pursuant to Section 5.1 or the amount thereof provable in
bankruptcy pursuant to Section 5.2, or impair or affect the right of any
Securityholder to institute suit for the payment thereof or, if the Securities
provide therefor, any right of repayment at the option of the Securityholder
without the consent of the Holder of each Security so affected, or (b) reduce
the aforesaid percentage of Securities of any series, the consent of the
Holders of which is required for any such supplemental indenture, without the
consent of the Holders of each Security so affected.
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been included solely
for the benefit of one or more particular series of Securities, or which
modifies the rights of Holders of Securities of such series, with respect to
such covenant or provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
Upon the request of the Issuer, accompanied by a copy of a
resolution of the Board of Directors certified by the secretary or an
assistant secretary of the Issuer authorizing the execution of any such
supplemental indenture, and upon the filing with the Trustee of evidence of
the consent of Securityholders as aforesaid and other documents, if any,
required by Section 7.1, the Trustee shall join with the Issuer in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders
under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Issuer
shall mail a notice thereof to the Holders of then Outstanding Securities of
each series affected thereby, by mailing a notice thereof by first-class mail
to such Holders at their addresses as they shall appear on the Security
register. Any failure of the Issuer to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such supplemental Indenture.
SECTION 8.3. Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions hereof,
this Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Trustee, the Issuer and the
Holders of Securities of each series affected thereby shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 8.4. Documents to Be Given to Trustee. The Trustee,
subject to the provisions of Sections 6.1 and 6.2, may receive an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article 8 complies with the
applicable provisions of this Indenture.
SECTION 8.5. Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee upon advice of
counsel for such series as to any matter provided for by such supplemental
indenture or as to any action taken at any such meeting. If the Issuer or the
Trustee shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee (as to form) and the Board of Directors
(as to form and substance), to any modification of this Indenture contained in
any such supplemental indenture may be prepared by the Issuer, authenticated
by the Trustee and delivered in exchange for the Securities of such series
then outstanding.
ARTICLE IX.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1. Issuer May Consolidate, etc., on Certain Terms.
The Issuer covenants that it will not merge or consolidate with any other
corporation or sell or convey all or substantially all of its assets to any
Person, unless (i) either the Issuer shall be the continuing corporation, or
the successor corporation or the Person which acquires by sale or conveyance
substantially all the assets of the Issuer (if other than the Issuer) shall be
a corporation or entity organized under the laws of the United States of
America or any state thereof and shall expressly assume the due and punctual
payment of the principal of and interest, if any, on all the Securities,
according to their tenor, and the due and punctual performance and observance
of all of the covenants and conditions of this Indenture to be performed or
observed by the Issuer, by supplemental indenture satisfactory to the Trustee,
executed and delivered to the Trustee by such corporation or entity, and (ii)
the Issuer or such successor corporation or entity, as the case may be, shall
not, immediately after such merger or consolidation, or such sale or
conveyance, be in default in the performance of any such covenant or
condition.
SECTION 9.2. Successor Issuer Substituted. In case of any
such consolidation, merger, sale or conveyance, and following such an
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Issuer, with the same effect as if it
had been named herein. Such successor corporation may cause to be signed, and
may issue either in its own name or in the name of the Issuer prior to such
succession any or all of the Securities issuable hereunder, which theretofore
shall not have been signed by the Issuer and delivered to the Trustee; and,
upon the order of such successor corporation instead of the Issuer and subject
to all the terms, conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver any Securities, which previously
shall have been signed and delivered by the officers of the Issuer to the
Trustee for authentication, and any Securities, which such successor
corporation thereafter shall cause to be signed and delivered to the Trustee
for that purpose. All of the Securities so issued, shall in all respects have
the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, sale, lease or
conveyance such changes in phraseology and form (but not in substance) may be
made in the Securities thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a
conveyance by way of lease) the Issuer or any successor corporation which
shall theretofore have become such in the manner described in this Article
shall be discharged from all obligations and covenants under this Indenture
and the Securities and may be liquidated and dissolved.
SECTION 9.3. Opinion of Counsel to Trustee. The Trustee,
subject to the provisions of Sections 6.1 and 6.2, may receive an Opinion of
Counsel, prepared in accordance with Section 11.5, as conclusive evidence that
any such consolidation, merger, sale, lease or conveyance, and any such
assumption, and any such liquidation or dissolution, complies with the
applicable provisions of this Indenture.
ARTICLE X.
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 10.1. Satisfaction and Discharge of Indenture. This
Indenture shall cease to be of further effect with respect to any series of
Securities (except as to any surviving rights of conversion or transfer or
exchange of Securities of such series expressly provided for herein or in the
form of Security for such series), and the Trustee, on demand of and at the
expense of the Issuer, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture as to such series, when
(1) either
(A) all Securities of that series theretofore authenticated
and delivered (other than (i) Securities of such series which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 2.9, and (ii) Securities of such series for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the
Issuer and thereafter repaid to the Issuer or discharged from such trust, as
provided in Section 3.4) have been delivered to the Trustee canceled or for
cancellation; or
(B) all such Securities of that series not theretofore
delivered to the Trustee canceled or for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their stated
maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Issuer,
and the Issuer, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the
purpose an amount, which shall be immediately due and payable, sufficient to
pay and discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee canceled or for cancellation, for principal (and
premium, if any) and interest, if any, 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;
(2) the Issuer has paid or caused to be paid all other sums payable
hereunder by the Issuer with respect to the Securities of such series; and
(3) the Issuer has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture with
respect to the Securities of such series have been complied with.
SECTION 10.2. Application of Trust Money. All money deposited with the
Trustee pursuant to Section 10.1 or Section 10.3 shall be held in trust and
applied by it, in accordance with the provisions of the series of Securities
in respect of which it was deposited and this Indenture, to the payment,
either directly or through any Paying Agent (including the Issuer acting as
its own Paying Agent), to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been deposited
with the Trustee; but such money need not be segregated from other funds
except to the extent required by law.
SECTION 10.3. Defeasance Upon Deposit of Funds or Government
Obligations. Unless pursuant to Section 2.3 provision is made that this
Section 10.3 shall not be applicable to the Securities of any series, at the
Issuer's option, either (a) the Issuer shall be deemed to have been Discharged
(as defined below) from its obligations with respect to any series of
Securities after the applicable conditions set forth below have been satisfied
or (b) the Issuer shall cease to be under any obligation to comply with any
term, provision or condition set forth in Sections 3.6 and 3.7 (and any other
Sections applicable to such Securities that are determined pursuant to Section
2.3 to be subject to this provision) with respect to any series of Securities
at any time after the applicable conditions set forth below have been
satisfied:
(1) the Issuer shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of
the Securities of such series (i) money in an amount, or (ii) the
equivalent in securities of the government which issued the currency in
which the Securities of such series are denominated or securities issued
by government agencies backed by the full faith and credit of such
government, which through the payment of interest and principal in respect
thereof in accordance with their terms will provide, not later than one
day before the due date of any payment, money in an amount, or (iii) a
combination of (i) and (ii), sufficient, in the opinion (with respect to
(ii) and (iii)) of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge each installment of principal (including
mandatory sinking fund payments) and any premium of, interest on and any
repurchase obligations with respect to the outstanding securities of such
series on the dates such installments of interest or principal or
repurchase obligations are due;
(2) no Event of Default or event (including such deposit)
which with notice or lapse of time 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
(3) the Issuer shall have delivered to the Trustee an Opinion
of Counsel, from counsel who is not an employee of the Company but which
may be outside general counsel to the Company, to the effect that Holders
of the Securities of such series will not recognize income, gain or loss
for Federal income tax purposes as a result of the Company's exercise of
its option under this Section 10.3 and will be subject to Federal income
tax on the same amount and in the same manner and at the same times as
would have been the case if such option had not been exercised, and, in
the case of Securities being Discharged, such opinion shall be based upon
at least one of the following authorities (issued, enacted or promulgated
after the date of this Indenture), substantially on point and to the
foregoing effect: (i) a public ruling of the Internal Revenue Service,
(ii) a private ruling of the Internal Revenue Service issued to the
Company with respect to the Securities, (iii) a provision of the Internal
Revenue Code, or (iv) a final regulation promulgated by the Department of
the Treasury.
The term "Discharged" means that the Issuer shall be deemed to
have paid and discharged the entire indebtedness represented by, and
obligations under, the Securities of such series and to have satisfied all
the obligations under this Indenture relating to the Securities of such
series (and the Trustee, at the expense of the Issuer, shall execute
proper instruments acknowledging the same), except (A) the rights of
Holders of Securities to receive, from the trust fund described in
Subsection (1) above, payment of the principal and any premium of and any
interest on such Securities when such payments are due; (B) the Issuer's
obligations with respect to such Securities under Sections 2.8, 2.9, 3.2,
3.4, 6.6 and 10.2; and (C) the rights, powers, trusts, duties and
immunities of the Trustee hereunder (including, without limitation, its
rights under Section 6.6 hereunder).
SECTION 10.4. Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect
to Securities of any series, all moneys then held by any paying agent under
the provisions of this Indenture with respect to such series of Securities
shall, upon demand of the Issuer, be repaid to it or paid to the Trustee and
thereupon such paying agent shall be released from all further liability with
respect to such moneys.
SECTION 10.5. Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Three Years. Any moneys deposited with or paid to the Trustee
or any paying agent for the payment of the principal of or interest on any
Security of any series and not applied but remaining unclaimed for three years
after the date upon which such principal or interest shall have become due and
payable, shall, upon the written request of the Issuer and unless otherwise
required by mandatory provisions of applicable escheat or abandoned or
unclaimed property law (as advised by counsel, pursuant to Section 6.2), be
repaid to the Issuer by the Trustee for such series or such paying agent, and
the Holder of the Security of such series shall, unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
laws, thereafter look only to the Issuer for any payment which such Holder may
be entitled to collect, and all liability of the Trustee or any paying agent
with respect to such moneys shall thereupon cease.
ARTICLE XI.
MISCELLANEOUS PROVISIONS
SECTION 11.1. Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual Liability. No recourse under or
upon any obligation, covenant or agreement contained in this Indenture, or in
any Security, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such or against any past, present or future
stockholder, officer or director, as such, of the Issuer or of any successor,
either directly or through the Issuer or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities by the
Holders thereof and as part of the consideration for the issue of the
Securities.
SECTION 11.2. Provisions of Indenture for the Sole Benefit of
Parties and Holders of Securities. Nothing in this Indenture or in the
Securities, expressed or implied, shall give or be construed to give to any
person, firm or corporation, other than the parties hereto and their
successors and the Holders of the Securities any legal or equitable right,
remedy or claim under this Indenture or under any covenant or provision herein
contained, all such covenants and provisions being for the sole benefit of the
parties hereto and their successors and of the Holders of the Securities.
SECTION 11.3. Successors and Assigns of Issuer Bound by
Indenture. All the covenants, stipulations promises and agreements in this
Indenture contained by or on behalf of the Issuer shall bind its successors
and assigns, whether so expressed or not.
SECTION 11.4. Notices and Demands on Issuer, Trustee and
Holders of Securities. Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by
the Holders of Securities to or on the Issuer may be given or served by being
deposited postage prepaid, first-class mail (except as otherwise specifically
provided herein) addressed (until another address of the Issuer is filed by
the Issuer with the Trustee) to C. R. Bard, Inc., 730 Central Avenue, Murray
Hill, New Jersey 07974, Attention: General Counsel. Any notice, direction,
request or demand by the Issuer or any holder of Securities to or upon the
Trustee shall be deemed to have been sufficiently given or made, for all
purposes, if given or made at the Corporate Trust Office.
In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impracticable to mail notice to the Issuer
when such notice is required to be given pursuant to any provision of this
Indenture, then any manner of giving such notice as shall be reasonably
satisfactory to the Issuer shall be deemed to be a sufficient giving of such
notice.
SECTION 11.5. Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Issuer to the Trustee to take any action under any of the provisions of this
Indenture, the Issuer shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent provided for in this Indenture relating
to the proposed action have been complied with and an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent have
been complied with.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture shall include (a) a statement that the
person making such certificate or opinion has read such covenant or condition,
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based, (c) a statement that, in the opinion of such
person, he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant
or condition has been complied with and (d) a statement as to whether or not,
in the opinion of such person, such condition or covenant has been complied
with.
Any certificate, statement or opinion of an officer of the Issuer
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters, information with respect to which is
in the possession of the Issuer, upon the certificate, statement or opinion of
or representations by an officer or officers of the Issuer, unless such
counsel knows that the certificate, statement or opinion or representations
with respect to the matters upon which his certificate, statement or opinion
may be based as aforesaid are erroneous, or in the exercise of reasonable care
should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Issuer
or of counsel may be based, insofar as it relates to accounting matters, upon
a certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as
the case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
SECTION 11.6. Payments Due on Saturdays, Sundays and Holidays.
If the date of maturity of interest, if any, on or principal of the Securities
of any series or the date fixed for redemption or repayment of any such
Security shall not be a Business Day, then payment of interest or principal
need not be made on such date, but may be made on the next succeeding Business
Day with the same force and effect as if made on the date of maturity or the
date fixed for redemption, and no interest shall accrue for the period after
such date.
SECTION 11.7. Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with another provision included in
this Indenture which is required to be included herein by any of Sections 310
to 317, inclusive, of the Trust Indenture Act of 1939, such required provision
shall control.
SECTION 11.8. New York Law to Govern. This Indenture and each
Security shall be deemed to be a contract under the laws of the state of New
York, and for all purposes shall be construed in accordance with the laws of
such state, except as may otherwise be required by mandatory provisions of
law.
SECTION 11.9. Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute one and the same instrument.
SECTION 11.10. Effect of Headings. The Article and Section
headings herein and the Table of Contents are for convenience only and shall
not affect the construction hereof.
SECTION 11.11. Securities in a Foreign Currency or in ECU. (a)
Whenever for purposes of this Indenture any action may be taken by the holders
of a specified percentage in aggregate principal amount of Securities of all
series at the time outstanding and, at such time, there are outstanding
Securities of any series which are denominated in a currency or currencies or
currency unit or currency units other than Dollars, then the principal amount
of Securities of such series which shall be deemed to be outstanding for the
purpose of taking such action shall be that amount of Dollars that could be
obtained for such principal amount based on (i) in the case of Securities
denominated in a foreign currency, the Market Exchange Rate in effect on the
date on which such action is to be taken (the "Determination Date") or (ii) in
the case of Securities denominated in ECU, the Official ECU Exchange Rate (or,
if ECU ceases to be used both (a) within the European Monetary System and (b)
for the settlement of transactions by public institutions of or within the
European Communities, then based on the Dollar Equivalent of the ECU) on the
Determination Date. The provisions of this paragraph shall apply in
determining the equivalent number of votes to which each securityholder or
proxy shall be entitled in respect of Securities of a series denominated in a
currency other than Dollars in connection with any vote taken by holders of
Securities pursuant to the terms of this Indenture.
(b) For the purposes of this Section 11.11, the following
terms shall have the following meanings:
"Component Currency" means any currency which, on the
Conversion Date, was a component currency of the ECU.
"Conversion Date" means the last date on which ECU was used
either (i) within the European Monetary System or (ii) for the
settlement of transactions by public institutions of or within the
European Communities.
"Dollar Equivalent of the ECU" means the amount, as
calculated by the Trustee on each Determination Date, equal to the sum
obtained by adding together the results obtained by converting the
Specified Amount of each Component Currency into Dollars at the Market
Exchange Rate on the Determination Date for such Component Currency.
"European Communities" means the European Economic Community,
the European Coal and Steel Community and the European Atomic Energy
Community.
"Market Exchange Rate" shall mean for any currency the noon
Dollar buying rate for that currency for cable transfers quoted in New
York City on the Determination Date as certified for customs purposes
by the Federal Reserve Bank of New York. If such rates are not
available for any reason with respect to one or more currencies for
which an exchange rate is required, the Trustee shall use without
liability on its part, such quotation of the Federal Reserve Bank of
New York as of the most recent available date, or if such quotation is
unavailable, quotations from Citibank, N.A., or if unavailable, any
other bank with combined assets of at least $500 million in New York
City or in the country of issue of the currency in question, or such
other quotations as the Issuer shall deem appropriate. Unless
otherwise specified by the Trustee, if there is more than one market
for dealing in any currency by reason of foreign exchange regulations
or otherwise, the market to be used in respect of such currency shall
be that upon which a nonresident issuer of securities designated in
such currency would purchase such currency in order to make payments
in respect of such securities, as advised by the Issuer.
"Official ECU Exchange Rate" applicable to any currency with
respect to any payment to be made hereunder means the exchange rate
between the ECU and such currency reported by the Commission of the
European Communities (currently based on the rates in effect at 2:30
p.m., Brussels time, on the relevant exchange markets) or if such
exchange rate ceases to be so reported, then such exchange rate shall
be determined by the Trustee using, without liability on its part,
quotations from Citibank, N.A., or if unavailable, any other bank with
combined assets of at least $500 million in New York City or if such
quotation is unavailable, such other quotations as the Issuer shall
deem appropriate, on the applicable Determination Date.
"Specified Amount" of a Component Currency means the number
of units or fractions thereof which such Component Currency
represented in the ECU on the Conversion Date. If after the
Conversion Date the official unit of any Component Currency is altered
by way of combination or subdivision, the Specified Amount of such
Component Currency shall be divided or multiplied in the same
proportion. If after the Conversion Date two or more Component
Currencies are consolidated into a single currency, the respective
Specified Amounts of such Component Currencies shall be replaced by an
amount in such single currency equal to the sum of the respective
Specified Amounts of such consolidated Component Currencies expressed
in such single currency, and such amount shall thereafter be a
Specified Amount and such single currency shall thereafter be a
Component Currency. If after the Conversion Date any Component
Currency shall be divided into two or more currencies, the Specified
Amount of such Component Currency shall be replaced by specified
amounts of such two or more currencies, the sum of which, at the
market Exchange Rate of such two or more currencies on the date of
such replacement, shall be equal to the Specified Amount of such
former Component Currency divided by the number of currencies into
which such Component Currency was divided, and such amounts shall
thereafter be Specified Amounts and such currencies shall thereafter
be Component Currencies.
(c) All decisions and determinations of the Trustee regarding
the Market Exchange Rate and the ECU Exchange Rate shall, in the absence of
manifest error, be conclusive for all purposes and irrevocably binding upon
the Issuer and all Holders.
SECTION 11.12. Judgment Currency. The obligation of the Issuer
in respect of any sum due to any securityholder hereunder shall,
notwithstanding any judgment in a currency (the "Judgment Currency") other
than the currency in which the payment is due (the "Required Currency"), be
discharged only to the extent that on the Business Day following receipt by
such securityholder of any sum adjudged to be so due in the Judgment Currency,
such securityholder may in accordance with normal banking procedures purchase
the amount originally due to such securityholder in the Required Currency with
the Judgment Currency; if the amount of the Required Currency so purchased is
less than the sum originally due to such securityholder in the Required
Currency, the Issuer agrees, as a separate obligation and notwithstanding any
such judgment, to indemnify such securityholder against such loss, and if the
amount of the Required Currency so purchased exceeds the sum originally due to
such securityholder, such securityholder agrees to remit to the Issuer such
excess.
ARTICLE XII.
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1. Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any series which are
redeemable before their maturity or to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by
Section 2.3 for Securities of such series.
SECTION 12.2. Notice of Full and Partial Redemption; Partial
Redemptions. Notice of redemption to the Holders of Securities of any series
to be redeemed as a whole or in part at the option of the Issuer shall be
given by mailing notice of such redemption by first class mail, postage
prepaid, at least 30 days and not more than 60 days prior to the date fixed
for redemption to such Holders of Securities of such series at their last
addresses as they shall appear upon the registry books. Any notice which is
mailed in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder receives the notice. Failure to
give notice by mail, or any defect in the notice to the Holder of any Security
of a series designated for redemption as a whole or in part shall not affect
the validity of the proceedings for the redemption of any other Security of
such series.
The notice of redemption to each such Holder shall specify (i)
the principal amount of each Security of such series held by such Holder to be
redeemed, (ii) the date fixed for redemption, (iii) the redemption price (and
premium, if any), (iv) the place or places of payment, (v) that payment will
be made upon presentation and surrender of such Securities, (vi) that such
redemption is pursuant to the mandatory or optional sinking fund, or both, if
such be the case, (vii) that interest accrued to the date fixed for redemption
will be paid as specified in such notice and (viii) that on and after said
date interest thereon or on the portions thereof to be redeemed will cease to
accrue. In case any Security of a series is to be redeemed in part only the
notice of redemption shall state the portion of the principal amount thereof
to be redeemed and shall state that on and after the date fixed for
redemption, upon surrender of such Security, a new Security or Securities of
such series in principal amount equal to the unredeemed portion thereof will
be issued.
The notice of redemption of Securities of any series to be
redeemed at the option of the Issuer shall be given by the Issuer or, at the
Issuer's request, by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of
redemption given as provided in this Section, the Issuer will deposit with the
Trustee or with one or more paying agents (or, if the Issuer is acting as its
own paying agent, set aside, segregate and hold in trust as provided in
Section 3.4) an amount of money sufficient to redeem on the redemption date
all the Securities of such series so called for redemption at the appropriate
redemption price, together with accrued interest to the date fixed for
redemption (and premium, if any). The election of the Issuer to redeem any
Securities shall be evidenced by a Board Resolution in addition to any other
requirements set forth hereunder. If less than all the outstanding Securities
of a series are to be redeemed, the Issuer will deliver to the Trustee at
least 70 days (or such shorter period as shall be acceptable to the Trustee
for its convenience) prior to the date fixed for redemption an Officers'
Certificate stating the aggregate principal amount of Securities to be
redeemed.
If less than all the Securities of a series are to be redeemed,
the Trustee shall, subject to Section 12.4, select by lot Securities of such
Series to be redeemed in whole or in part. Securities may be redeemed in part
in multiples equal to the minimum authorized denomination for Securities of
such series or any multiple thereof. The Trustee shall promptly notify the
Issuer in writing of the Securities of such series selected for redemption
and, in the case of any Securities of such series selected for partial
redemption, the principal amount thereof to be redeemed. For all purposes of
this Indenture, unless the context otherwise requires, all provisions relating
to the redemption of Securities of any series shall relate, in the case of any
Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be redeemed.
SECTION 12.3. Payment of Securities Called for Redemption. If
notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall become due and payable
on the date and at the place stated in such notice at the applicable
redemption price (and premium, if any), together with interest, if any,
accrued to the date fixed for redemption, and on and after said date (unless
the Issuer shall default in the payment of such Securities at the redemption
price, together with interest accrued to said date) interest on the Securities
or portions of Securities so called for redemption shall cease to accrue shall
be void, and except as provided in Sections 6.5 and 10.5, such Securities
shall cease from and after the date fixed for redemption to be entitled to any
benefit or security under this Indenture, and the Holders thereof shall have
no right in respect of such Securities except the right to receive the
redemption price (and premium, if any) thereof and unpaid interest to the date
fixed for redemption. On presentation and surrender of such Securities at a
place of payment specified in said notice, said Securities or the specified
portions thereof shall be paid and redeemed by the Issuer at the applicable
redemption price (and premium, if any), together with interest, if any,
accrued thereon to the date fixed for redemption; provided that payment of
interest, if any, becoming due on or prior to the date fixed for redemption
shall be payable to the Holders of Securities registered as such on the
relevant record date subject to the terms and provisions of Section 2.4
hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by the Security.
Upon presentation of any Security redeemed in part only, the
Issuer shall execute and the Trustee shall authenticate and deliver to or on
the order of the Holder thereof, at the expense of the Issuer, a new Security
or Securities of such series, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 12.4. Exclusion of Certain Securities from Eligibility
for Selection for Redemption. Securities shall be excluded from eligibility
for selection for redemption if they are identified by registration and
certificate number in a written statement signed by an authorized officer of
the Issuer and delivered to the Trustee at least 40 days prior to the last
date on which notice of redemption may be given as being owned of record and
beneficially by, and not pledged or hypothecated by, either (a) the issuer or
(b) an entity specifically identified in such written statement directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer.
SECTION 12.5. Mandatory and Optional Sinking Funds. The
minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional
sinking fund payment". The date on which a sinking fund payment is to be made
is herein referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Issuer may at
its option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise
acquired (except as aforesaid) by the Issuer and delivered to the Trustee for
cancellation pursuant to Section 2.10, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section, or
(c) receive credit for Securities of such series (not previously so credited)
redeemed by the Issuer through any optional redemption provision contained in
the terms of such series. Securities so delivered or credited shall be
received or credited by the Trustee at the sinking fund redemption price
specified in such Securities.
On or before the forty-fifth day next preceding each sinking fund
payment date for any series, the Issuer will deliver to the Trustee a written
statement signed by an authorized officer of the Issuer (a) specifying the
portion of the mandatory sinking fund payment to be satisfied by payment of
cash and the portion to be satisfied by credit of Securities of such series,
(b) stating that none of the Securities of such series has theretofore been so
credited, (c) stating that no defaults in the payment of interest or Events of
Default with respect to such series have occurred (which have not been waived
or cured) and are continuing and (d) stating whether or not the Issuer intends
to exercise its right to make an optional sinking fund payment with respect to
such series and, if so, specifying the amount of such optional sinking fund
payment which the Issuer intends to pay on or before the next succeeding
sinking fund payment date. Any Securities of such series to be credited and
required to be delivered to the Trustee in order for the Issuer to be entitled
to credit therefor as aforesaid which have not theretofore been delivered to
the Trustee shall be delivered for cancellation pursuant to Section 2.10 to
the Trustee with such written statement (or reasonably promptly thereafter if
acceptable to the Trustee). Such written statement shall be irrevocable and
upon its receipt by the Trustee the Issuer shall become unconditionally
obligated to make all the cash payments or payments therein referred to, if
any, on or before the next succeeding sinking fund payment date. Failure of
the Issuer, on or before any such forty-fifth day, to deliver such written
statement and Securities specified in this paragraph, if any, shall not
constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Issuer (i) that the mandatory sinking fund payment
for such series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of
such series in respect thereof and (ii) that the Issuer will make no optional
sinking fund payment with respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any preceding sinking fund payments made in cash shall
exceed $50,000 (or a lesser sum if the Issuer shall so request) with respect
to the Securities of any particular series, such cash shall be applied on the
next succeeding sinking fund payment date to the redemption of Securities of
such series at the sinking fund redemption price together with accrued
interest to the date fixed for redemption. If such amount shall be $50,000 or
less and the Issuer makes no such request then it shall be carried over and
invested by the Trustee in mutual or trust fund institutions which are
registered with the Commission under the Securities Act of 1933, as amended,
and the Investment Company Act of 1940, as amended, and which have underlying
investments consisting solely of and limited to United States Government
obligations until a sum in excess of $50,000 is available. The Trustee, upon
written instruction from the Issuer, shall select, in the manner provided in
Section 12.2, for redemption on such sinking fund payment date a specified
principal amount of Securities of such series then Outstanding to absorb said
cash, as nearly as may be, and shall (if requested in writing by the Issuer)
inform the Issuer of the serial numbers of the Securities of such series (or
portions thereof) so selected. Securities of any series which are (a) owned
by the Issuer or are certified by the Issuer by means of an Officers'
Certificate to be owned by an entity directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer, as
shown by the Security register, and not actually known to a Responsible
Officer of the Trustee to have been pledged or hypothecated by the Issuer or
any such entity; or (b) identified in an Officers' Certificate at least 60
days prior to the sinking fund payment date as being beneficially owned by,
and not pledged or hypothecated by, the Issuer or an entity directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer shall be excluded from Securities of such series
eligible for selection for redemption. The Trustee, in the name and at the
expense of the Issuer (or the Issuer, if it shall so request the Trustee in
writing) shall cause notice of redemption of the Securities of such series to
be given in substantially the manner provided in Section 12.2 (and with the
effect provided in Section 12.3) for the redemption of Securities of such
series in part at the option of the Issuer. The amount of any sinking fund
payments not so applied or allocated to the redemption of Securities of such
series shall be added to the next cash sinking fund payment for such series
and, together with such payment, shall be applied in accordance with the
provisions of this Section. Any and all sinking fund moneys held on the
stated maturity date of the Securities of any particular series (or earlier,
if such maturity is accelerated), which are not held for the payment or
redemption of particular Securities of such series shall be applied, together
with other moneys, if necessary, sufficient for the purpose, to the payment of
the principal of, and interest on, the Securities of such series at maturity.
At least one day before each sinking fund payment date, the
Issuer shall pay to the Trustee in cash or shall otherwise provide for the
payment of all interest accrued to the date fixed for redemption on Securities
to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any
Securities of a series with sinking fund moneys or mail any notice of
redemption of Securities for such series by operation of the sinking fund
during the continuance of a default in payment of interest on such Securities
or of any Event of Default except that, where the mailing of notice of
redemption of any Securities shall theretofore have been made, the Trustee
shall redeem or cause to be redeemed such Securities, provided that it shall
have received from the Issuer a sum sufficient for such redemption. Except as
aforesaid, any moneys in the sinking fund for such series at the time when any
such default or Event of Default shall occur, and any moneys thereafter paid
into the sinking fund, shall, during the continuance of such default or Event
of Default, be deemed to have been collected under Article Five and held for
the payment of all such Securities. In case such Event of Default shall have
been waived as provided in Section 5.10 or the default cured on or before the
sixtieth day preceding the sinking fund payment date in any year, such moneys
shall thereafter be applied on the next succeeding sinking fund payment date
in accordance with this Section to the redemption of such Securities.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed as of ________, 1996.
C. R. BARD, INC.
By
Name:
Title:
Attest:
By
Name:
Title:
THE CHASE MANHATTAN BANK, N.A.,
not in its individual
capacity, but solely
as Trustee
By
Name:
Title:
Attest:
By
Name:
Title:
____________________
EXHIBIT 4.2
$__________________
Unless and until it is exchanged in whole or in part for Notes in definitive
registered form, this Note may not be transferred except as a whole by the
Depositary to the nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of such successor
Depositary.
C. R. BARD, INC.
____% Note Due ____
C. R. BARD, INC., a New Jersey corporation (the "Issuer", which term
includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to CEDE & CO., or registered
assigns, at the office or agency of the Issuer maintained therefor, the
principal sum of ___________ Dollars on _____________, in the coin or currency
of the United States, and to pay interest, semi-annually on ________ and
________ of each year, commencing ________________, on said principal sum at
said office or agency, in like coin or currency, at the rate per annum
specified in the title of this Note, from the ________ or the ________, as the
case may be, next preceding the date to which interest has been paid or duly
provided for, unless the date hereof is a date to which interest has been paid
or duly provided for, in which case from the date of this Note, or unless no
interest has been paid or duly provided for on this Note, in which case from
___________, until payment of said principal sum has been made or duly
provided for; [provided, that payment of interest may be made at the option of
the Issuer by check mailed to the address of the person entitled thereto as
such address shall appear on the Security register or by wire transfer as
provided in the Indenture]. Notwithstanding the foregoing, if the date hereof
is after the __ day of _____ or _____, as the case may be, and before the
following ________ or ________, this Note shall bear interest from such
________ or ________; provided, that if the Issuer shall default in the
payment of interest due on such ________ or ________, then this Note shall
bear interest from the next preceding ________ or ________, to which interest
has been paid or duly provided for or, if no interest has been paid or duly
provided for on this Note, from ________. The interest so payable on any
________ or ________ will, subject to certain exceptions provided in the
Indenture referred to on the reverse hereof, be paid to the person in whose
name this Note is registered at the close of business on the ________ or
_____, as the case may be, next preceding such ________ or ________, whether
or not such day is a Business Day.
Reference is made to the further provisions of this Note set forth
on the reverse hereof. Such further provisions shall for all purposes have
the same effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been manually signed
by the Trustee under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, C. R. BARD, INC. has caused this instrument to
be signed manually or by facsimile by its duly authorized officers.
C. R. BARD, INC.
By________________________________
Attest:
________________________
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated: THE CHASE MANHATTAN BANK, N.A.,
as Trustee
By________________________________
Authorized Signatory
REVERSE OF NOTE
C. R. BARD, INC.
___% Note Due ____
This Note is one of a duly authorized issue of debentures, notes,
bonds or other evidences of indebtedness of the Issuer (hereinafter called the
"Securities") of the series hereinafter specified, all issued or to be issued
under and pursuant to an indenture dated as of _____, 1996 (herein called the
"Indenture"), duly executed and delivered by the Issuer to The Chase Manhattan
Bank, N.A., as Trustee (herein called the "Trustee"), to which Indenture and
all indentures supplemental thereto reference is hereby made for a description
of the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Issuer and the Holders of the Securities. The
Securities may be issued in one or more series, which different series may be
issued in various aggregate principal amounts, may mature at different times,
may bear interest (if any) at different rates, may be subject to different
redemption provisions (if any), may be subject to different sinking, purchase
or analogous funds (if any) and may otherwise vary as in the Indenture
provided.
Interest will be computed on the basis of a 360-day year of twelve
30-day months. The Issuer shall pay interest on overdue principal and, to the
extent lawful, on overdue installments of interest at the rate per annum borne
by this Note. If a payment date is not a Business Day at a place of payment,
payment may be made at that place on the next succeeding day that is a
Business Day, and no interest shall accrue for the intervening period.
In case an Event of Default with respect to the ___% Notes Due ____
shall have occurred and be continuing, the principal hereof and the interest
accrued hereon, if any, may be declared, and upon such declaration shall
become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions which permit the Issuer and the
Trustee, with the written consent of the Holders of not less than 66 2/3% in
aggregate principal amount of the Securities at the time Outstanding of all
series affected thereby (voting as one class), to supplement the Indenture or
any supplemental indenture or modify the rights of the Holders of the
Securities of such series; provided, that no such supplemental indenture
shall: (i) extend the final maturity of any Security, or reduce the principal
amount thereof, or reduce the rate or extend the time of payment of interest
thereon, or reduce any amount payable on redemption thereof, or make the
principal thereof (including any amount in respect of original issue
discount), or interest or premium thereon payable in any coin or currency
other than that provided in the Securities or in accordance with the terms
thereof, or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon an acceleration of the maturity
thereof or the amount thereof provable in bankruptcy, or impair or affect the
right of any Securityholder to institute suit for the payment thereof or, if
the Securities provide therefor, any right of repayment at the option of the
Securityholder without the consent of the Holder of each Security so affected,
or (ii) reduce the aforesaid percentage of Securities of any series, the
consent of the Holders of which is required for any such supplemental
indenture, without the consent of the Holders of each Security so affected.
It is also provided in the Indenture that an existing default or
Event of Default with respect to the Securities of any series, and its
consequences, may be waived in the manner and subject to the conditions set
forth in the Indenture, except a default in the payment of principal of or
interest on any Security or in respect of a covenant or provision of the
Indenture which cannot be modified or amended without the consent of the
Holder of each outstanding Security affected. Upon any such waiver, such
default shall cease to exist and be deemed to have been cured and not to have
occurred, and any Event of Default arising therefrom shall be deemed to have
been cured and not to have occurred, for every purpose of the Indenture; but
no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereto.
No reference herein to the Indenture and no provision of this Note
or of the Indenture shall alter or impair the obligation of the Issuer, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Note in the manner, at the place, at the respective times, at
the rate and in the coin or currency herein prescribed.
The Notes are issuable initially only in registered form without
coupons in denominations of $1,000 or any integral multiple thereof and in the
manner and subject to the limitations provided in the Indenture.
[This Note will not be redeemable at the option of the Company prior
to maturity.] [This Note is redeemable prior to maturity...] [This Debenture
is entitled to the benefits of a mandatory sinking fund as follows...]
Upon due presentment for registration of transfer of this Note at
the office or agency of the Issuer maintained therefor, a new Note or Notes of
authorized denominations for an equal aggregate principal amount will be
issued to the transferee in exchange therefor, subject to the limitations
provided in the Indenture, without charge except for any tax or other
governmental charge imposed in connection therewith.
The Issuer, the Trustee and any agent of the Issuer or the Trustee
may deem and treat the registered Holder hereof as the absolute owner of this
Note (whether or not this Note shall be overdue and notwithstanding any
notation of ownership or other writing hereon), for the purpose of receiving
payment of, or on account of, the principal hereof and, subject to the
provisions hereof, interest hereon, and for all other purposes, and neither
the Issuer nor the Trustee nor any agent of the Issuer or the Trustee shall be
affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement
contained in the Indenture or any indenture supplemental thereto or in any
Note or because of any indebtedness evidenced thereby, shall be had against
any incorporator as such, or against any past, present or future stockholder,
officer, director or employee, as such, of the Issuer or of any successor,
either directly or through the Issuer or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance hereof and as part of the
consideration for the issue hereof.
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture.
The laws of the State of New York (without regard to conflicts of
laws principles thereof) shall govern this Note.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE]
______________________________________
______________________________________________________________________________
______________________________________________________________________________
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]
______________________________________________________________________________
the within Note and all rights thereunder, hereby
______________________________________________________________________________
irrevocably constituting and appointing such person attorney
______________________________________________________________________________
to transfer such Note on the books of the Issuer, with full
______________________________________________________________________________
power of substitution in the premises.
Dated:______________________
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 whatsoever.
Signature guarantee: ________________________
EXHIBIT 5.1
[Letterhead of C. R. Bard, Inc.]
June 13, 1996
C. R. Bard, Inc.
730 Central Avenue
Murray Hill, New Jersey 07974
Dear Sirs:
I am Vice President and General Counsel of C. R. Bard, Inc., a New
Jersey corporation (the "Company"). This opinion is being delivered in
connection with the Registration Statement on Form S-3 (the "Registration
Statement") being filed by the Company under the Securities Act of 1933, as
amended (the "Act"), relating to the offering and sale of debt securities of
the Company (the "Debt Securities"), which are to be issued and sold by the
Company from time to time pursuant to Rule 415 under the Act for a maximum
aggregate offering price not to exceed $200,000,000.
I have examined (i) the Restated Certificate of Incorporation and By-
laws of the Company and (ii) the form of indenture to be executed by the
Company and The Chase Manhattan Bank, N.A., as trustee, with respect to the
Debt Securities (the "Indenture"). In addition, I have examined, and have
relied as to matters of fact upon, originals or copies, certified or otherwise
identified to my satisfaction, of such corporate records, agreements, documents
and other instruments and such certificates or comparable documents of public
officials and of officers and representatives of the Company, and have made
such other and further investigations, as I have deemed relevant and necessary
as a basis for the opinions hereinafter set forth.
In such examination, I have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted as originals, the conformity to original documents of all
documents submitted as certified or photostatic copies, and the authenticity of
the originals of such latter documents. In addition, I have assumed that (i) a
Prospectus Supplement will have been prepared and filed with the Securities and
Exchange Commission describing the Debt Securities; (ii) all Debt Securities
issued will be issued and sold in compliance with applicable federal and state
securities laws and solely in the manner stated in the Registration Statement
and the appropriate Prospectus Supplement; (iii) a definitive purchase,
underwriting or similar agreement with respect to any Debt Securities will have
been duly authorized and validly executed and delivered by the Company and the
other parties thereto; and (iv) any securities of the Company issuable upon
conversion, exchange or exercise of any Debt Security being offered will be
duly authorized, created and, if appropriate, reserved for issuance upon such
conversion, exchange or exercise.
Based upon and subject to the foregoing, I am of the opinion that,
when (i) the Indenture has been duly authorized and validly executed and
delivered by the Company and the Trustee, (ii) the Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended, (iii) the Board of
Directors of the Company (the "Board") or a committee of the Board or an
officer of the Company acting pursuant to duly delegated authority has taken
all necessary corporate action to approve the issuance and terms of the Debt
Securities, the terms of the offering thereof and related matters and (iv) the
Debt Securities have been duly executed, authenticated, issued and delivered in
accordance with the provisions of the Indenture and the applicable definitive
agency, purchase, underwriting or similar agreement approved by, or pursuant to
authority duly delegated by, the Board upon payment of the consideration
therefor provided for therein, the Debt Securities will be legally issued and
will constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms.
The opinion set forth above is subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
I am a member of the Bar of the State of New Jersey, and I do not
express any opinion herein concerning any law other than the law of the State
of New Jersey and the federal law of the United States.
This opinion letter is rendered to you in connection with the above-
described transactions. This opinion letter may not be relied upon by you for
any other purpose, or relied upon, or furnished to, any other person, firm or
corporation without my prior written consent; provided, however, that I hereby
consent to the filing of this opinion as an Exhibit to the Registration
Statement and to the use of my name in the Registration Statement and in the
Prospectus forming a part of the Registration Statement.
This opinion (including the consent set forth in the preceding
paragraph) applies to any Debt Securities registered pursuant to Rule 462(b)
under the Act and may be incorporated by reference into any registration
statement filed pursuant to such Rule with respect to such Debt Securities.
Very truly yours,
/s/ Richard A. Flink
Richard A. Flink,
Vice President and
General Counsel
EXHIBIT 12.1
C. R. BARD, INC.
Computation of Ratio of Earnings to Fixed Charges
<TABLE>
<CAPTION>
($000's)
Three Months Years
Ended March 31, Ended December 31,
------------------ ------------------------------------------------------------------------
1996 1995 1994 1993 1992 1991
------------------ ----------- ----------- ------------- ------------- ------------
<S> <C> <C> <C> <C> <C> <C>
Earnings before taxes . . . . . . . $ 10,600 $123,500 $ 104,100 $101,400 $120,200 $ 88,700
Add (deduct):
Fixed charges . . . . . . . . . . . 8,000 31,500 23,200 18,700 19,900 21,200
Undistributed earnings of less
than 50% owned companies
carried at equity . . . . . . . (200) (800) (400) (200) (500) (500)
Interest capitalized . . . . . . . -- -- (200) -- (300) (900)
-------- -------- -------- -------- -------- --------
Earnings available
for fixed charges . . . . . . . $ 18,400 $154,200 $ 126,700 $119,900 $139,300 $108,500
======== ======== ======== ======== ======== ========
Fixed charges:
Interest, including amounts
capitalized . . . . . . . . . . $ 6,000 $ 24,200 $ 16,500 $ 12,500 $ 13,700 $ 14,800
Proportion of rent expense deemed
to represent interest factor . . 2,000 7,300 6,700 6,200 6,200 6,400
-------- -------- -------- -------- -------- --------
Fixed charges . . . . . . . . . . . $ 8,000 $ 31,500 $ 23,200 $ 18,700 $ 19,900 $ 21,200
======== ======== ======== ======== ======== ========
Ratio of earnings to fixed charges 2.30<F1> 4.89 5.46 6.41 7.00 5.12
======== ======== ======== ======== ======== ========
<FN>
<F1> During the three months ended March 31, 1996, the Company (i) received
royalty payments of $9,900,000 related to sales of angioplasty balloon
catheter technology for prior periods, (ii) reorganized its global
cardiology business and recorded a $31,000,000 write down of assets
related to its guidewire technology and (iii) recorded miscellaneous
charges amounting to $6,000,000 primarily related to legal settlements.
Excluding the effect of these unusual items, for the three months ended
March 31, 1996 earnings before taxes would have been $37,700,000 and the
ratio of earnings to fixed charges would have been 5.69.
</TABLE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
To C. R. Bard, Inc:
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-3 registration statement and in the related Prospectus
of our report dated January 24, 1996 included in C. R. Bard, Inc.'s Form 10-K
for the year ended December 31, 1995 and to all references to our Firm included
in the registration statement.
/s/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Roseland, New Jersey
June 12, 1996
EXHIBIT 24.1
C. R. BARD, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned, being
an officer or director, or both, of C. R. BARD, INC. (the "Company"), in his or
her capacity as set forth below, hereby constitutes and appoints WILLIAM H.
LONGFIELD his or her true and lawful attorney and agent, to do any and all acts
and all things and to execute any and all instruments which said attorney and
agent may deem necessary or desirable to enable the Company to comply with the
Securities Act of 1933, as amended (the "Act"), and any rules, regulations and
requirements of the Securities and Exchange Commission thereunder, in
connection with the registration under the Act of debt securities of the
Company ("Debt Securities"), including, without limitation, the power and
authority to sign the name of each of the undersigned in the capacities
indicated below to the Registration Statement on Form S-3 or any Form relating
to the sale of such Debt Securities, to be filed with the Securities and
Exchange Commission with respect to such Debt Securities, to any and all
amendments or supplements to such Registration Statement, whether such
amendments or supplements are filed before or after the effective date of such
Registration Statement, to any related Registration Statement filed pursuant to
Rule 462 under the Act, and to any and all instruments or documents filed as
part of or in connection with such Registration Statement or any and all
amendments thereto, whether such amendments are filed before or after the
effective date of such Registration Statement; and each of the undersigned
hereby ratifies and confirms all that such attorney and agent shall do or cause
to be done by virtue hereof.
IN WITNESS HEREOF, each of the undersigned has subscribed his or her
name as of the 12th day of June, 1996.
/s/ William C. Bopp
______________________________________________
Name: William C. Bopp
Title: Executive Vice President and
Chief Financial Officer and Director
(Principal Financial Officer)
/s/ Charles P. Grom
______________________________________________
Name: Charles P. Grom
Title: Vice President and Controller
(Principal Accounting Officer)
/s/ Benson F. Smith
______________________________________________
Name: Benson F. Smith
Title: President and Chief Operating Officer
and Director
/s/ Joseph F. Abely, Jr.
______________________________________________
Name: Joseph F. Abely, Jr.
Title: Director
/s/ William T. Butler, M.D.
______________________________________________
Name: William T. Butler, M.D.
Title: Director
/s/ Raymond B. Carey, Jr.
______________________________________________
Name: Raymond B. Carey, Jr.
Title: Director
/s/ Daniel A. Cronin, Jr.
______________________________________________
Name: Daniel A. Cronin, Jr.
Title: Director
/s/ T. Kevin Dunnigan
______________________________________________
Name: T. Kevin Dunnigan
Title: Director
/s/ Regina E. Herzlinger
______________________________________________
Name: Regina E. Herzlinger
Title: Director
/s/ Robert P. Luciano
______________________________________________
Name: Robert P. Luciano
Title: Director
/s/ Robert H. McCaffrey
______________________________________________
Name: Robert H. McCaffrey
Title: Director
EXHIBIT 25.1
Securities Act of 1933 File No. __________
(If application to determine eligibility
of trustee for delayed offering pursuant
to Section 305(b)(2))
______________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) _____________
__________________
THE CHASE MANHATTAN BANK
(National Association)
(Exact name of trustee as specified in its charter)
13-2633612
(I.R.S. Employer Identification Number)
1 Chase Manhattan Plaza, New York, New York
(Address of principal executive offices)
10081
(Zip Code)
_________________________
C. R. BARD, INC.
(Exact name of obligor as specified in its charter)
New Jersey
(State or other jurisdiction of incorporation or organization)
22-1454160
(I.R.S. Employer Identification No.)
730 Central Avenue
Murray Hill, New Jersey
(Address of principal executive offices)
07974
(Zip Code)
_________________________
Debt Securities
(Title of the indenture securities)
_______________________________________________________________________________
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of The Federal Reserve System,
Washington, D. C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe
each such affiliation.
The Trustee is not the obligor, nor is the Trustee directly
or indirectly controlling, controlled by, or under common
control with the obligor.
(See Note on Page 2.)
Item 16. List of Exhibits.
List below all exhibits filed as a part of this statement
of eligibility.
<F1> 1. --A copy of the articles of association of the trustee as now
in effect. (See Exhibit T-1 (Item 12) , Registration
No. 33-55626.)
<F1> 2. --Copies of the respective authorizations of The Chase
Manhattan Bank (National Association) and The Chase
Bank of New York (National Association) to commence
business and a copy of approval of merger of said
corporations, all of which documents are still in
effect. (See Exhibit T-1 (Item 12), Registration No.
2-67437.)
<F1> 3. --Copies of authorizations of The Chase Manhattan Bank
(National Association) to exercise corporate trust
powers, both of which documents are still in effect.
(See Exhibit T-1 (Item 12), Registration No. 2-67437.)
<F1> 4. --A copy of the existing by-laws of the trustee. (See Exhibit
T-1 (Item 12(a)), Registration No. 33-28806.)
<F1> 5. --A copy of each indenture referred to in Item 4, if the
obligor is in default. (Not applicable.)
<F1> 6. --The consents of United States institutional trustees
required by Section 321(b) of the Act. (See Exhibit T-
1 (Item 12), Registration No. 22-19019.)
7. --A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
[FN]
___________________
<F 1> The Exhibits thus designated are incorporated herein by
reference. Following the description of such Exhibits is a reference to the
copy of the Exhibit heretofore filed with the Securities and Exchange
Commission, to which there have been no amendments or changes.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
trustee of all facts on which to base a responsive answer to Item 2 the answer
to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, The Chase Manhattan Bank (National Association), a corporation
organized and existing under the laws of the United States of America, has
duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of New York, and the
State of New York, on the 11th day of June 1996.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By /s/ Kathleen Perry
Kathleen Perry, Second Vice President
<PAGE>
Exhibit 7
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of The Chase Manhattan Bank,
N.A. of New York in the State of New York, at the close of business on March
31, 1996, published in response to call made by Comptroller of the Currency,
under title 12, United States Code, Section 161.
Charter Number 2370 Comptroller of the Currency Northeastern District
Statement of Resources and Liabilities
<TABLE>
<CAPTION>
Thousands
ASSETS of Dollars
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin . . . . . . . . . . . . $ 5,026,000
Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . . . . 4,135,000
Held to maturity securities . . . . . . . . . . . . . . . . . . . . . . . . . 0
Available-for-sale securities . . . . . . . . . . . . . . . . . . . . . . . . 5,632,000
Federal funds sold and securities purchased under agreements to resell in
domestic offices of the bank and of its Edge and Agreement subsidiaries,
and in IBFs:
Federal funds sold . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,254,000
Securities purchased under agreements to resell . . . . . . . . . . . . . 880,000
Loans and lease financing receivable:
Loans and leases, net of unearned income . . . . . . . . . . . . . . . . . $60,869,000
LESS: Allowance for loan and lease losses . . . . . . . . . . . . . . . . 1,113,000
LESS: Allocated transfer risk reserve . . . . . . . . . . . . . . . . . . 0
-----------
Loans and leases, net of unearned income, allowance, and reserve . . . . . 59,756,000
Assets held in trading accounts . . . . . . . . . . . . . . . . . . . . . . 13,203,000
Premises and fixed assets (including capitalized leases) . . . . . . . . . . 1,690,000
Other real estate owned . . . . . . . . . . . . . . . . . . . . . . . . . . . 268,000
Investments in unconsolidated subsidiaries and associated companies . . . . . 29,000
Customers' liability to this bank on acceptances outstanding . . . . . . . . 1,170,000
Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,330,000
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9,398,000
-----------
TOTAL ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 103,771,000
============
Thousands
LIABILITIES of Dollars
Deposits:
In domestic offices . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 30,681,000
Noninterest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . $11,913,000
Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18,768,000
-----------
In foreign offices, Edge and Agreement subsidiaries, and IBFs . . . . . . 38,923,000
Noninterest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 3,696,000
Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35,227,000
-----------
Federal Funds purchased and securities sold under agreements to repurchase
in domestic offices of the bank and of its Edge and Agreement
subsidiaries, and in IBFs:
Federal funds purchased . . . . . . . . . . . . . . . . . . . . . . . . . 3,143,000
Securities sold under agreements to repurchase . . . . . . . . . . . . . . 100,000
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . . . . 25,000
Trading liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,453,000
Other borrowed money:
With original maturity of one year or less . . . . . . . . . . . . . . . . 3,064,000
With original maturity of more than one year . . . . . . . . . . . . . . . 365,000
Mortgage indebtedness and obligations under capitalized leases . . . . . . . 39,000
Bank's liability on acceptances executed and outstanding . . . . . . . . . . 1,173,000
Subordinated notes and debentures . . . . . . . . . . . . . . . . . . . . . . 1,960,000
Other liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,482,000
-----------
TOTAL LIABILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96,408,000
Limited-life preferred stock and related surplus . . . . . . . . . . . . . . 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus . . . . . . . . . . . . . . . . 0
Common stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921,000
Surplus 5,354,000
Undivided profits and capital reserves . . . . . . . . . . . . . . . . . . . 1,092,000
Net unrealized holding gains (losses) on available-for-sale securities . . . 15,000
Cumulative foreign currency translation adjustments . . . . . . . . . . . . . 11,000
-----------
TOTAL EQUITY CAPITAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7,363,000
-----------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK, AND EQUITY CAPITAL . . . . . $ 103,771,000
============
</TABLE>
I, Lester J. Stephens, Jr., Senior Vice President and Controller of the above
named bank do hereby declare that this Report of Condition is true and correct
to the best of my knowledge and belief. (Signed) Lester J. Stephens, Jr.
We the undersigned directors, attest to the correctness of this statement of
resources and liabilities. We declare that it has been examined by us, and to
the best of our knowledge and belief has been prepared in conformance with the
instructions and is true and correct.
(Signed) Thomas G. Labrecque
(Signed) Donald Trautlein Directors
(Signed) Richard J. Boyle
