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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 17, 1995
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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HUBBELL INCORPORATED
(Exact name of Registrant as specified in its charter)
CONNECTICUT 06-0397030
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
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584 Derby Milford Road
Orange, Connecticut 06477-4024
(203) 799-4100
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
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Richard W. Davies, Esq.
General Counsel and Secretary
Hubbell Incorporated
584 Derby Milford Road
Orange, Connecticut 06477-4024
(203) 799-4100
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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PLEASE ADDRESS A COPY OF ALL COMMUNICATIONS TO:
[S] [C]
Joel S. Hoffman, Esq. Francis J. Morison, Esq.
Simpson Thacher & Bartlett Davis Polk & Wardwell
425 Lexington Avenue 450 Lexington Avenue
New York, New York 10017 New York, New York 10017
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO
THE PUBLIC: FROM TIME TO TIME AFTER EFFECTIVE DATE OF THIS REGISTRATION
STATEMENT.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. / /
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CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS OF PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED (1) PER UNIT (2) OFFERING PRICE (3) REGISTRATION FEE (2)
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Debt Securities............... $200,000,000 $200,000,000 $68,965.52
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Total.................... $200,000,000 $200,000,000 $68,965.52
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(1) The amount to be registered consists of up to $200,000,000 in U.S. dollars
or the equivalent in foreign currency or currency units aggregate initial
offering price of an indeterminate amount and number of Debt Securities.
(2) The maximum offering price per unit has been omitted pursuant to Securities
Act Release No. 6964. The registration fee has been calculated in
accordance with Rule 457(o) under the Securities Act of 1933, as amended,
and reflects the offering price rather than the principal amount of any
Debt Securities issued at a discount.
(3) Estimated solely for the purpose of calculating the registration fee.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME 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 August 17, 1995
PROSPECTUS
$200,000,000
HUBBELL INCORPORATED
SENIOR DEBT SECURITIES
Hubbell Incorporated (the "Company") intends to issue from time to time in
one or more series its senior unsecured debt securities (the "Senior Debt
Securities"), consisting of debentures, notes, bonds and/or other unsecured
evidences of indebtedness, at an aggregate initial offering price not to exceed
U.S. $200,000,000, or the equivalent thereof if Senior Debt Securities are
denominated in one or more foreign currencies or foreign currency units, at
prices and on terms to be determined at or prior to the time of sale.
Specific terms of the Senior Debt Securities in respect of which this
Prospectus is being delivered (the "Offered Securities") will be set forth in an
accompanying supplement to this Prospectus (each, a "Prospectus Supplement"),
together with the terms of the offering of the Offered Securities, the initial
offering price and the net proceeds to the Company from the sale thereof. The
accompanying Prospectus Supplement will set forth, among other items, the
following with respect to the Offered Securities: the specific designation,
aggregate principal amount, authorized denominations, maturity, rate or method
of calculation of interest, if any, and dates for payment thereof, any
redemption, prepayment or sinking fund provisions, any exchange rights, and the
currency, currencies or currency units in which principal, premium, if any, or
interest, if any, is payable.
The accompanying Prospectus Supplement will also contain information, where
applicable, as to any listing on a securities exchange or quotation of the
Offered Securities.
The Offered Securities may be sold through underwriters, dealers or agents
or may be sold directly to purchasers. If any underwriters, dealers or agents
are involved in the sale of any Offered Securities, their names and any
applicable fee, commission or discount arrangements will be set forth in the
accompanying Prospectus Supplement. The net proceeds to the Company of the sale
of Offered Securities will be the purchase price of such Offered Securities less
attributable issuance expenses, including underwriters', dealers' or agents'
compensation arrangements. See "Plan of Distribution" for indemnification
arrangements for underwriters, dealers and agents.
This Prospectus may not be used to consummate sales of Offered Securities
unless accompanied by a Prospectus Supplement.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is , 1995
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NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS OR ANY ACCOMPANYING PROSPECTUS SUPPLEMENT AND, IF
GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER, DEALER OR AGENT.
NEITHER THIS PROSPECTUS NOR ANY ACCOMPANYING PROSPECTUS SUPPLEMENT CONSTITUTES
AN OFFER TO SELL OR A SOLICITATION OF ANY OFFER TO BUY ANY OF THE SECURITIES
HEREBY OR THEREBY OFFERED IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION. NEITHER THE
DELIVERY OF THIS PROSPECTUS OR ANY ACCOMPANYING PROSPECTUS SUPPLEMENT NOR ANY
SALE MADE HEREUNDER OR THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY
IMPLICATION THAT THE INFORMATION HEREIN OR THEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO THE DATE HEREOF OR THEREOF OR THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE SUCH DATE OR, IN THE CASE OF INFORMATION
INCORPORATED HEREIN OR THEREIN BY REFERENCE, THE DATE OF FILING WITH THE
SECURITIES AND EXCHANGE COMMISSION.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). The reports, proxy
statements and other information filed by the Company with the Commission can be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549 or its regional offices located at Suite 1400, Citicorp Center, 500
West Madison Street, Chicago, Illinois 60661-2511 and at Suite 1300, 7 World
Trade Center, New York, New York 10048. Copies of such material can be obtained
by mail from the Public Reference Section of the Commission at Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. In
addition, such reports, proxy statements and other information may be inspected
at the offices of the New York Stock Exchange ("NYSE"), 20 Broad Street, New
York, New York 10005.
The Company has filed with the Commission a Registration Statement on Form
S-3 (the "Registration Statement") under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to the Offered Securities. This Prospectus
does not contain all of the information set forth in the Registration Statement
and the exhibits and schedules thereto. For further information with respect to
the Company and the Offered Securities, reference is hereby made to the
Registration Statement and the exhibits and schedules filed therewith, which may
be obtained from the principal office of the Commission in Washington, D.C.,
upon the payment of fees prescribed by the Commission.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by the Company with the Commission pursuant
to the Exchange Act are incorporated herein by reference:
(i) Annual Report on Form 10-K for the fiscal year ended December 31,
1994; and
(ii) Quarterly Reports on Form 10-Q for the fiscal quarters ended March
31, 1995 and June 30, 1995.
All reports and other documents filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus
and before the termination of the offering made hereby will be deemed to be
incorporated by reference herein and to be part hereof from the date of filing
of such reports and documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein will be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document, which
also is or is deemed to be incorporated by reference herein, modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will provide, without charge to each person, including any
beneficial owner, to whom a Prospectus is delivered, upon written or oral
request of such person, a copy of any or all of the documents incorporated
herein by reference (other than exhibits, unless such exhibits specifically are
incorporated by reference into such documents or this Prospectus). Requests for
such documents should be submitted in writing,
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addressed to the Secretary, Hubbell Incorporated, 584 Derby Milford Road, P.O.
Box 549, Orange, Connecticut 06477-4024.
THE COMPANY
The Company was founded as a proprietorship in 1888, and was incorporated
in Connecticut in 1905. For over a century, the Company has manufactured and
sold high quality electrical and electronic products for a broad range of
commercial, industrial, telecommunications, and utility applications. Since
1961, the Company has expanded its operations into other areas of the electrical
industry and related fields. The Company's products are now manufactured or
assembled by nineteen divisions and subsidiaries at twenty-eight locations in
the United States, Canada, Puerto Rico, Mexico, United Kingdom and Singapore.
The Company also participates in joint ventures with partners in Germany and
Taiwan, and maintains sales offices in Malaysia, Germany, Hong Kong, South
Korea, and the Middle East.
On January 19, 1994, in reporting its fourth quarter-1993, and full
year-1993, results, the Company announced implementation of a restructuring
program which will include the consolidation of all or a portion of ten
manufacturing facilities, a reduction in labor force of approximately 6%, the
reorganization of certain operation's management and structure, and a
realignment of warehousing and product distribution capabilities.
In April, 1994, the Company acquired the stock of A.B. Chance Industries,
Inc. ("Chance"). Chance, with facilities in Centralia, Missouri; Scarborough,
Canada; and Bristol, England, manufactures products used in the electrical
transmission, distribution and telecommunications industries, including
electrical apparatus (overhead and underground distribution switches, fuses,
contacts, and sectionalizers); anchors; hardware; polymer insulators; and
hot-line tools and other safety equipment.
The principal executive offices of the Company are located at 584 Derby
Milford Road, Orange, Connecticut 06477-4024, and its telephone number is (203)
799-4100.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratios of earnings to fixed charges for
the Company and its consolidated subsidiaries for the periods indicated. For
purposes of calculating the following ratios, "earnings" consist of income from
continuing operations before income taxes and fixed charges. "Fixed charges"
consist of interest on indebtedness, amortization of debt expense and premium,
capitalized interest, and the portion of rents that the Company believes to be
representative of the interest factor (one-third of rental expense).
SIX MONTHS
ENDED
JUNE 30, YEAR ENDED DECEMBER 31,
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1995 1994 1994 1993 1992 1991 1990
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Ratio of Earnings to Fixed Charges................. 15.1 21.6 18.4 16.5 46.0 45.6 55.3
USE OF PROCEEDS
Unless otherwise indicated in the applicable Prospectus Supplement, the net
proceeds to be received by the Company from the sale of the Offered Securities
will be added to the Company's general funds and will be used for general
corporate purposes, including capital expenditures, to finance possible
acquisitions and to repay, redeem or repurchase its outstanding indebtedness.
DESCRIPTION OF THE SENIOR DEBT SECURITIES
The Senior Debt Securities are to be issued under an indenture to be dated
as of a date prior to the first issuance of Senior Debt Securities, as
supplemented from time to time (the "Senior Indenture"), between the Company and
Chemical Bank, as Trustee (the "Trustee"). The form of the Senior Indenture is
filed as an
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exhibit to the Registration Statement. The Senior Indenture is subject to and
governed by the Trust Indenture Act of 1939, as amended (the "TIA"). The
statements made under this heading relating to the Senior Debt Securities and
the Senior Indenture are summaries of the provisions thereof, do not purport to
be complete and are qualified in their entirety by reference to the Senior
Indenture, including the definitions of certain terms therein and in the TIA.
Certain capitalized terms used below but not defined herein have the meanings
ascribed to them in the Senior Indenture.
The particular terms of the Senior Debt Securities being offered (the
"Offered Securities"), any modifications of or additions to the general terms of
the Senior Debt Securities as described herein that may be applicable and any
applicable Federal income tax considerations will be described in the Prospectus
Supplement relating to the Offered Securities. Accordingly, for a description of
the terms of the Offered Securities, reference must be made both to the
Prospectus Supplement relating thereto and the description of Senior Debt
Securities set forth in this Prospectus.
GENERAL
The Senior Debt Securities will be direct, unsecured obligations of the
Company. The indebtedness represented by the Senior Debt Securities will rank
senior to all indebtedness of the Company that by its terms is subordinated in
right of payment. The Senior Debt Securities may be issued in one or more
series.
The Senior Indenture provides that the aggregate principal amount of Senior
Debt Securities that may be issued thereunder is unlimited. The terms of each
series of Senior Debt Securities will be established pursuant to a resolution of
the Board of Directors of the Company and set forth or determined in the manner
provided in an Officer's Certificate or by a supplemental indenture.
The Company conducts certain of its operations through its Subsidiaries,
and therefore the Company is dependent on the cash flow of its Subsidiaries to
meet its debt obligations, including its obligations under the Senior Debt
Securities. In addition, the rights of the Company and its creditors, including
the Holders of the Senior Debt Securities, to participate in the assets of any
Subsidiary upon the latter's liquidation or reorganization will be subject to
the prior claims of the Subsidiary's creditors except to the extent that the
Company may itself be a creditor with recognized claims against the Subsidiary.
The accompanying Prospectus Supplement will set forth the terms of the
Offered Securities, which may include the following:
(1) The title of the Offered Securities.
(2) The limit, if any, upon the aggregate principal amount of the
Offered Securities.
(3) The date or dates on which or periods during which the Offered
Securities may be issued, and the date or dates, or the method by which
such date or dates will be determined, on which the principal of (and
premium, if any, on) the Offered Securities are, or may be, payable.
(4) The rate or rates at which the Offered Securities will bear
interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest, if any, shall
accrue or the method by which such date or dates shall be determined, the
interest payment dates on which such interest will be payable and, if the
Offered Securities are Registered Securities, the regular record dates, if
any, for the interest payable on such interest payment dates, and, if the
Offered Securities are floating rate securities, the notice, if any, to
Holders regarding the determination of interest and the manner of giving
such notice and any conditions or contingencies as to the payment of
interest in cash or otherwise, if any.
(5) The place or places where the principal of (and premium, if any)
and interest on the Offered Securities shall be payable; the extent to
which, or the manner in which, any interest payable on any Global Note (as
defined below) on an interest payment date will be paid, and the manner in
which any principal of, or premium, if any, on, any Global Note will be
paid and whether any Global Note will require any notation to evidence
payment of principal or interest.
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(6) The obligation, if any, of the Company to redeem, repay, purchase
or offer to purchase the Offered Securities pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of the
Holder thereof and the period or periods within which, or the dates on
which, the prices at which and the terms and conditions upon which the
Offered Securities shall be redeemed, repaid, purchased or offered to be
purchased, in whole or in part, pursuant to such obligation.
(7) The right, if any, of the Company to redeem the Offered
Securities at its option and the period or periods within which, or the
date or dates on which, the price or prices at which, and the terms and
conditions upon which Offered Securities may be redeemed, if any, in whole
or in part, at the option of the Company or otherwise.
(8) If other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Registered Securities of the series
shall be issuable, and if other than the denomination of $5,000, the
denomination or denominations in which any Bearer Securities of the series
shall be issuable.
(9) Whether the Offered Securities are to be issued as original issue
discount securities ("Discount Securities") and the amount of discount at
which such Offered Securities may be issued and, if other than the
principal amount thereof, the portion of the principal amount of Offered
Securities which shall be payable upon declaration of acceleration of the
Maturity thereof upon an Event of Default.
(10) Provisions, if any, for the defeasance of the Offered Securities
or for the discharge of certain of the Company's obligations with respect
to the Offered Securities.
(11) Whether the Offered Securities are to be issued as Registered
Securities or Bearer Securities or both, and, if Bearer Securities are
issued, whether any interest coupons appertaining thereto ("Coupons") will
be attached thereto, whether such Bearer Securities may be exchanged for
Registered Securities and the circumstances under which, and the place or
places at which, any such exchanges, if permitted, may be made.
(12) Whether provisions for payment of additional amounts or tax
redemptions shall apply and, if such provisions shall apply, such
provisions; and, if any of the Offered Securities are to be issued as
Bearer Securities, the applicable procedures and certificates relating to
the exchange of temporary Global Notes for definitive Bearer Securities.
(13) If other than U.S. dollars, the currency, currencies or currency
units (the term "currency" as used herein will include currency units) in
which the Offered Securities shall be denominated or in which payment of
the principal of (and premium, if any) and interest on the Offered
Securities may be made, and particular provisions applicable thereto and,
if applicable, the amount of Offered Securities which entitles the Holder
or its proxy to one vote for purposes of the Senior Indenture.
(14) If the principal of (and premium, if any) or interest on the
Offered Securities are to be payable, at the election of the Company or a
Holder thereof, in a currency other than that in which the Offered
Securities are denominated or payable without such election, in addition to
or in lieu of the applicable provisions of the Senior Indenture, the period
or periods within which and the terms and conditions upon which, such
election may be made and the time and the manner of determining the
exchange rate or rates between the currency or currencies in which the
Offered Securities are denominated or payable without such election and the
currency or currencies in which the Offered Securities are to be paid if
such election is made.
(15) The date as of which any Offered Securities shall be dated.
(16) If the amount of payments of principal of (and premium, if any)
or interest on the Offered Securities may be determined with reference to
an index, including, but not limited to, an index based on a currency or
currencies other than that in which the Offered Securities are denominated
or payable, or any other type of index, the manner in which such amounts
shall be determined.
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(17) If the Offered Securities are denominated or payable in a
foreign currency, any other terms concerning the payment of principal of
(and premium, if any) or any interest on the Offered Securities (including
the currency or currencies of payment thereof); and whether the judgment
currency provisions of the Senior Indenture are established as terms of the
Offered Securities.
(18) The designation of the original currency determination agent, if
any.
(19) The applicable overdue interest rate, if any.
(20) If the Offered Securities do not bear interest, applicable dates
for determining record holders of Offered Securities.
(21) Any deletions from, modifications of or additions to any Events
of Default or covenants provided for in the Senior Indenture with respect
to the Offered Securities, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants set forth
in the Senior Indenture.
(22) If any of the Offered Securities are to be issued as Bearer
Securities, (x) whether interest in respect of any portion of a temporary
Offered Security in global form (representing all of the Outstanding Bearer
Securities of the series) payable in respect of any interest payment date
prior to the exchange of such temporary Offered Security for definitive
Offered Securities shall be paid to any clearing organization with respect
to the portion of such temporary Offered Security held for its account and,
in such event, the terms and conditions (including any certification
requirements) upon which any such interest payment received by a clearing
organization will be credited to the persons entitled to interest payable
on such interest payment date, (y) the terms upon which interests in such
temporary Offered Security in global form may be exchanged for interests in
a permanent Global Note or for definitive Offered Securities and the terms
upon which interests in a permanent Global Note, if any, may be exchanged
for definitive Offered Securities and (z) the cities in which the
Authorized Newspapers designated for the purposes of giving notices to
Holders are published.
(23) Whether the Offered Securities shall be issued in whole or in
part in the form of one or more Global Notes and, in such case, the
depositary or any common depositary for such Global Notes; and if the
Offered Securities are issuable only as Registered Securities, the manner
in which and the circumstances under which Global Notes representing
Offered Securities may be exchanged for Registered Securities in definitive
form.
(24) The designation, if any, of any depositaries, trustees (other
than the Trustee), paying agents, authenticating agents, security
registrars (other than the Trustee) or other agents with respect to the
Offered Securities.
(25) If the Offered Securities are to be issuable in definitive form
only upon receipt of certain certificates or other documents or upon
satisfaction of certain conditions, the form and terms of such
certificates, documents or conditions.
(26) If any of the Offered Securities are to be issued as Registered
Securities, the person to whom any interest on any Registered Security
shall be payable, if other than the person in whose name that Registered
Security is registered at the close of business on the Regular Record Date
for such interest, and if any of the Offered Securities are to be issued as
Bearer Securities, the manner in which, or the person to whom, any interest
on any Bearer Security shall be payable, if otherwise than upon the
presentation and surrender of the Coupons, if any, appertaining thereto as
they severally mature, the extent to which, or the manner in which, any
interest payable on an Offered Security in temporary global form on an
interest payment date will be paid and the extent to which, or the manner
in which, any interest payable on an Offered Security in permanent global
form on an interest payment date will be paid.
(27) The provisions, if any, granting special rights to the Holders
of Offered Securities upon the occurrence of such events as may be
specified.
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(28) Any other terms or conditions relating to the Offered Securities
not specified in the Senior Indenture (which other terms shall not be
inconsistent with the requirements of the TIA and the provisions of the
Senior Indenture).
In the event that Discount Securities are issued, the Federal income tax
consequences and other special considerations applicable to such Discount
Securities will be described in the Prospectus Supplement relating thereto.
The general provisions of the Senior Indenture do not contain any
provisions that would limit the ability of the Company or its Subsidiaries to
incur indebtedness or that would afford holders of Senior Debt Securities
protection in the event of a highly leveraged or similar transaction involving
the Company or its Subsidiaries. Reference is made to the Prospectus Supplement
relating to the Offered Securities for information with respect to any deletions
from, modifications of or additions to, if any, the Events of Default or
covenants of the Company described below that are applicable to the Offered
Securities.
All of the Senior Debt Securities of a series need not be issued at the
same time, and may vary as to interest rate, maturity and other provisions and
unless otherwise provided, a series may be reopened for issuance of additional
Senior Debt Securities of such series.
If applicable, the Company will comply with the requirements of Rule 14e-1
under the Exchange Act and any other applicable securities laws or regulations
in connection with any repurchase of the Senior Debt Securities of a series at
the option of the Holder.
DENOMINATIONS, REGISTRATION AND TRANSFER
Unless specified in the Prospectus Supplement, with respect to any series
of Senior Debt Securities, any Registered Securities of a series, other than
Registered Securities issued in global form (which may be of any denomination),
shall be issuable in denominations of $1,000 and any integral multiple thereof
and any Bearer Securities of a series, other than Bearer Securities issued in
global form (which may be of any denomination), shall be issuable in the
denomination of $5,000. Unless specified in the Prospectus Supplement, the
Senior Debt Securities of any series shall be payable in U.S. dollars. The
Senior Indenture also provides that Senior Debt Securities of a series may be
issuable in global form. See "Book-Entry Senior Debt Securities." Unless
otherwise indicated in the Prospectus Supplement, Bearer Securities (other than
in global form) will have Coupons attached.
Registered Securities of any series will be exchangeable for other
Registered Securities of the same series of like aggregate principal amount and
of like Stated Maturity and with like terms and conditions. If so specified in
the Prospectus Supplement, at the option of the Holder thereof, to the extent
permitted by law, any Bearer Security of any series which by its terms is
registrable as to principal and interest may be exchanged for a Registered
Security of such series of like aggregate principal amount and of a like Stated
Maturity and with like terms and conditions, upon surrender of such Bearer
Security at the corporate trust office of the Trustee or at any other office or
agency of the Company designated for the purpose of making any such exchanges.
Subject to certain exceptions, any Bearer Security issued with Coupons
surrendered for exchange must be surrendered with all unmatured Coupons and any
matured Coupons in default attached thereto.
Notwithstanding the foregoing, the exchange of Bearer Securities for
Registered Securities will be subject to the provisions of United States income
tax laws and regulations applicable to Senior Debt Securities in effect at the
time of such exchange.
Except as otherwise specified in the Prospectus Supplement, in no event may
Registered Securities, including Registered Securities received in exchange for
Bearer Securities, be exchanged for Bearer Securities.
Upon surrender for registration of transfer of any Registered Security of
any series at the office or agency of the Company maintained for such purpose,
the Company shall deliver, in the name of the designated transferee, one or more
new Registered Securities of the same series of like aggregate principal amount
of
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such denominations as are authorized for Registered Securities of such series
and of a like Stated Maturity and with like terms and conditions. No service
charge will be made for any registration of transfer or exchange of Senior Debt
Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Company shall not be required (i) to register the transfer of or
exchange Senior Debt Securities of any series during a period beginning at the
opening of business 15 days before the day of the transmission of a notice of
redemption of Senior Debt Securities of such series selected for redemption and
ending at the close of business on the day of such transmission, or (ii) to
register the transfer of or exchange any Senior Debt Security so selected for
redemption in whole or in part, except the unredeemed portion of any Senior Debt
Security being redeemed in part.
CERTAIN COVENANTS OF SENIOR DEBT SECURITIES
The Senior Indenture contains, among other things, the following covenants:
Limitation on Liens. The Company will not create or assume and will not
permit a Restricted Subsidiary to create or assume, otherwise than in favor of
the Company or a Subsidiary, any mortgage, pledge or other lien or encumbrance
upon any Principal Property or upon any stock of any Subsidiary or any
indebtedness of any Subsidiary to the Company or such Restricted Subsidiary,
whether now owned or hereafter acquired, without securing the Outstanding Senior
Debt Securities of any applicable series equally and ratably with any and all
other obligations and indebtedness thereby secured so long as any such other
obligations and indebtedness are so secured (provided, that for the purpose of
providing such equal and ratable security, the principal amount of Outstanding
Senior Debt Securities of any series of Discount Securities will be such portion
of the principal amount as may be specified in the terms of that series). This
limitation will not apply to certain permitted mortgages, pledges and other
liens and encumbrances as described in the Senior Indenture, including (a) liens
existing on the date of the Senior Indenture or at the time a person owning a
Principal Property shall become a Restricted Subsidiary; (b) purchase money
liens created within specified time limits; (c) liens securing the cost of
construction or improvement of any property created within specified time
limits; (d) liens existing on acquired property and existing on shares of stock
or indebtedness of a person at the time such person shall become a Subsidiary;
(e) certain tax, materialmen's, mechanic's, carrier's, workmen's, repairmen's
and judgment liens, certain liens arising by operation of law and certain other
similar liens; (f) liens in connection with certain government contracts; (g)
certain liens in favor of any state or local government or governmental agency
in connection with certain tax-exempt financings; and (h) mortgages, pledges and
other liens and encumbrances not otherwise permitted; provided, that the
aggregate amount of indebtedness secured by all such mortgages, pledges or other
liens or encumbrances does not exceed 15% of the Company's Consolidated Net
Tangible Assets as of the end of the Company's most recently completed
accounting period preceding the creation or assumption of any such mortgage,
pledge or other lien or encumbrance (reduced by any Attributable Debt with
respect to any Sale and Leaseback Transaction permitted under clause (c) of, but
not otherwise permitted under, the "Limitation on Sale and Leaseback
Transactions" covenant below).
Limitation on Sale and Leaseback Transactions. The Company will not enter
into and will not permit a Restricted Subsidiary to enter into any Sale and
Leaseback Transaction with respect to any Principal Property owned by the
Company or such Restricted Subsidiary on the date of the Senior Indenture,
unless (a) such Sale and Leaseback Transaction involves a lease for a term of
not more than three years; (b) such Sale and Leaseback Transaction is between
the Company or such Restricted Subsidiary and a Subsidiary; (c) the Company or
such Restricted Subsidiary would be entitled to incur indebtedness secured by a
mortgage, pledge or other lien or encumbrance on such Principal Property
involved in such Sale and Leaseback Transaction at least equal in amount to the
Attributable Debt with respect to such Sale and Leaseback Transaction pursuant
to the proviso of clause (h) under the "Limitation on Liens" covenant above
without equally and ratably securing the Senior Debt Securities of any
applicable series pursuant to such covenant; or (d) the proceeds of such Sale
and Leaseback Transaction are at least equal to the fair market value thereof
(as determined in good faith by the Board of Directors of the Company) and the
Company applies an amount equal to the greater of the net proceeds of such sale
or the Attributable Debt with respect to such Sale and Leaseback
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Transaction within 180 days of such sale to either (or a combination) of (i) the
retirement (other than the mandatory retirement, mandatory prepayment or sinking
fund payment or by payment at maturity) of Funded Debt of the Company or a
Restricted Subsidiary (other than Funded Debt that is subordinated to the Senior
Debt Securities) or (ii) the purchase, construction or development of other
comparable property.
EVENTS OF DEFAULT
Under the Senior Indenture, "Event of Default" with respect to the Senior
Debt Securities of any series means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law, pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any administrative or
governmental body): (1) default in the payment of any interest upon any Senior
Debt Security or any payment with respect to the Coupons, if any, of such series
when it becomes due and payable, and continuance of such default for a period of
30 days; (2) default in the payment of the principal of (and premium, if any,
on) any Senior Debt Security of such series at its Maturity; (3) default in the
deposit of any sinking fund payment, when and as due by the terms of a Senior
Debt Security of such series; (4) default in the performance, or breach of any
covenant or warranty in the Senior Indenture (other than a covenant or warranty
a default in whose performance or whose breach is elsewhere in the Senior
Indenture specifically dealt with or which expressly has been included in the
Senior Indenture solely for the benefit of Senior Debt Securities of a series
other than such series), and continuance of such default or breach for a period
of 60 days after there has been given to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal amount of
the Outstanding Senior Debt Securities of such series, a written notice
specifying such default or breach and requiring it to be remedied; (5) certain
events of bankruptcy, insolvency or reorganization with respect to the Company;
or (6) any other Event of Default provided with respect to Senior Debt
Securities of that series pursuant to the Senior Indenture.
The Senior Indenture requires the Company to file with the Trustee,
annually, an officers' certificate as to the Company's compliance with all
conditions and covenants under the Senior Indenture. The Senior Indenture
provides that the Trustee may withhold notice to the Holders of a series of
Senior Debt Securities of any default (except payment defaults on such Senior
Debt Securities) if it considers such withholding to be in the interest of the
Holders of such series of Senior Debt Securities to do so.
If an Event of Default with respect to Senior Debt Securities of any series
at the time Outstanding (other than an Event of Default specified in clause (5)
above) occurs and is continuing, then in every case the Trustee or the Holders
of not less than 25% in principal amount of the Outstanding Senior Debt
Securities of such series may declare the principal amount (or, if any Senior
Debt Securities of such series are Discount Securities, such portion of the
principal amount of such Discount Securities as may be specified in the terms of
such Discount Securities) of the Senior Debt Securities of such series to be due
and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such principal
amount (or specified amount), plus accrued and unpaid interest (and premium, if
any) (the "Default Amount") shall become immediately due and payable. Upon
payment of the Default Amount in the currency in which such Senior Debt
Securities are denominated (except as otherwise provided in the Senior Indenture
or specified in the Prospectus Supplement), all obligations of the Company in
respect of the payment of principal of the Senior Debt Securities of such series
shall terminate. Notwithstanding any other provision of the Senior Indenture, if
an Event of Default specified in clause (5) above occurs, then the Default
Amount on the Senior Debt Securities then Outstanding shall ipso facto become
and be immediately due and payable without any declaration or other act on the
part of the Trustee or any Holder.
Subject to the provisions of the Senior Indenture relating to the duties of
the Trustee, in case an Event of Default with respect to Senior Debt Securities
of a particular series shall occur and be continuing, the Trustee shall be under
no obligation to exercise any of its rights or powers under the Senior Indenture
at the request, order or direction of any of the Holders of Senior Debt
Securities of that series, unless such Holders shall have offered to the Trustee
reasonable indemnity against the expenses and liabilities which might be
incurred by it in compliance with such request. Subject to such provisions for
the indemnification of the Trustee, the Holders of a majority in principal
amount of the Outstanding Senior Debt Securities of such series shall have the
right
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to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee under the Senior Indenture, or exercising any trust or
power conferred on the Trustee with respect to the Senior Debt Securities of
that series.
At any time after such a declaration of acceleration with respect to Senior
Debt Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as provided in the
Senior Indenture, the Holders of not less than a majority in principal amount of
the Outstanding Senior Debt Securities of such series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if (1) the Company has paid or deposited with the Trustee a sum in
the currency in which such Senior Debt Securities are denominated (except as
otherwise provided in the Senior Indenture or specified in the Prospectus
Supplement) sufficient to pay (A) all overdue installments of interest on all
Senior Debt Securities or all overdue payments with respect to any Coupons of
such series, (B) the principal of (and premium, if any, on) any Senior Debt
Securities of such series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates prescribed
therefor in such Senior Debt Securities, (C) to the extent that payment of such
interest is lawful, interest upon overdue installments of interest on each
Senior Debt Security of such series or upon overdue payments on any Coupons of
such series at a rate established for such series, and (D) all sums paid or
advanced by the Trustee and the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel and any other amounts due
the Trustee under the Senior Indenture; and (2) all Events of Default with
respect to Senior Debt Securities of such series, other than the nonpayment of
the principal of Senior Debt Securities of such series which have become due
solely by such declaration of acceleration, have been cured or waived as
provided in the Senior Indenture. No such rescission and waiver will affect any
subsequent default or impair any right consequent thereon.
MERGER OR CONSOLIDATION
The Senior Indenture provides that the Company may not consolidate with or
merge into any other corporation or sell or convey its properties and assets
substantially as an entirety to any person, unless (1) the corporation formed by
such consolidation or into which the Company is merged or the person which
acquires by sale or conveyance, the properties and assets of the Company
substantially as an entirety (the "successor corporation") is a corporation
organized and existing under the laws of the United States or any State or the
District of Columbia and expressly assumes by a supplemental indenture the due
and punctual payment of the principal of (and premium, if any) and interest on
all the Outstanding Senior Debt Securities and Coupons, if any, issued under the
Senior Indenture and the performance of every covenant in the Senior Indenture
on the part of the Company to be performed or observed; (2) immediately after
giving effect to such transaction, no Event of Default under the Senior
Indenture, and no event which, after notice or lapse of time, or both, would
become such an Event of Default, shall have occurred and be continuing; and (3)
the Company has delivered to the Trustee an officers' certificate and an opinion
of counsel each stating that such consolidation, merger, sale or conveyance and
such supplemental indenture comply with the Senior Indenture provisions and that
all conditions precedent therein provided for relating to such transaction have
been complied with.
For purposes of this covenant, "sell or convey its properties and assets
substantially as an entirety" shall mean properties and assets contributing in
the aggregate to at least 80% of the Company's total consolidated revenues as
reported in the Company's last available periodic financial report (quarterly or
annual, as the case may be) filed with the Securities and Exchange Commission.
MODIFICATION OR WAIVER
Without prior notice to or consent of any Holders, the Company and the
Trustee, at any time and from time to time, may modify the Senior Indenture for
any of the following purposes: (1) to evidence the succession of another
corporation to the rights of the Company and the assumption by such successor of
the covenants and obligations of the Company in the Senior Indenture and in the
Senior Debt Securities and Coupons, if any, issued thereunder; (2) to add to the
covenants of the Company for the benefit of the Holders of all or any series of
Senior Debt Securities and the Coupons, if any, appertaining thereto (and if
such covenants are to be for the benefit of less than all series, stating that
such covenants are expressly being
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included solely for the benefit of such series), or to surrender any right or
power conferred in the Senior Indenture upon the Company; (3) to add any
additional Events of Default (and if such Events of Default are to be applicable
to less than all series, stating that such Events of Default are expressly being
included solely to be applicable to such series); (4) to add or change any of
the provisions of the Senior Indenture to such extent as shall be necessary to
permit or facilitate the issuance thereunder of Senior Debt Securities of any
series in bearer form, registrable or not registrable, and with or without
Coupons, to permit Bearer Securities to be issued in exchange for Registered
Securities, to permit Bearer Securities to be issued in exchange for Bearer
Securities of other authorized denominations or to permit the issuance of Senior
Debt Securities of any series in uncertificated form, provided that any such
action shall not adversely affect the interests of the Holders of Senior Debt
Securities of any series or any related Coupons in any material respect; (5) to
change or eliminate any of the provisions of the Senior Indenture, provided that
any such change or elimination will become effective only when there is no
Outstanding Senior Debt Security issued thereunder or Coupon of any series
created prior to such modification which is entitled to the benefit of such
provision and as to which such modification would apply; (6) to secure the
Senior Debt Securities issued thereunder or to provide that any of the Company's
obligations under the Senior Debt Securities or the Senior Indenture shall be
guaranteed; (7) to supplement any of the provisions of the Senior Indenture to
such extent as is necessary to permit or facilitate the defeasance and discharge
of any series of Senior Debt Securities, provided that any such action will not
adversely affect the interests of the Holders of Senior Debt Securities of such
series or any other series of Senior Debt Securities issued under the Senior
Indenture or any related Coupons in any material respect; (8) to establish the
form or terms of Senior Debt Securities and Coupons, if any, as permitted by the
Senior Indenture; (9) to evidence and provide for the acceptance of appointment
thereunder by a successor Trustee with respect to one or more series of Senior
Debt Securities and to add to or change any of the provisions of the Senior
Indenture as is necessary to provide for or facilitate the administration of the
trusts thereunder by more than one Trustee; (10) to cure any ambiguity, to
correct or supplement any provision in the Senior Indenture which may be
defective or inconsistent with any other provision therein, to eliminate any
conflict between the terms of the Senior Indenture and the Senior Debt
Securities issued thereunder and the TIA or to make any other provisions with
respect to matters or questions arising under the Senior Indenture which will
not be inconsistent with any provision of the Senior Indenture; provided such
other provisions shall not adversely affect the interests of the Holders of
Outstanding Senior Debt Securities or Coupons, if any, of any series created
thereunder prior to such modification in any material respect; or (11) to change
or modify any of the provisions of the Senior Indenture; provided that any such
changes or modifications shall not adversely affect the interests of the Holders
of Outstanding Senior Debt Securities or Coupons, if any, of any series created
thereunder prior to such modification in any material respect.
With the written consent of the Holders of not less than a majority in
principal amount of the Outstanding Senior Debt Securities of each series
affected by such modification voting separately, the Company and the Trustee may
modify the Senior Indenture for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Senior
Indenture or of modifying in any manner the rights of the Holders of Senior Debt
Securities and Coupons, if any, under the Senior Indenture; provided, however,
that no such modification may, without the consent of the Holder of each
Outstanding Senior Debt Security of each such series affected thereby (1) change
the Stated Maturity of the principal of, or any installment of interest on, any
Senior Debt Security, or reduce the principal amount thereof or the interest
thereon or any premium payable upon redemption thereof, or change the Stated
Maturity of or reduce the amount of any payment to be made with respect to any
Coupon, or change the currency or currencies in which the principal of (and
premium, if any) or interest on such Senior Debt Security is denominated or
payable, or reduce the amount of the principal of a Discount Security that would
be due and payable upon a declaration of acceleration of the Maturity thereof,
or adversely affect the right of repayment or repurchase, if any, at the option
of the Holder, or reduce the amount of, or postpone the date fixed for, any
payment under any sinking fund or analogous provisions for any Senior Debt
Security, or impair the right to institute suit for the enforcement of any
payment on or after the Stated Maturity thereof (or, in the case of redemption,
on or after the Redemption Date), or limit the obligation of the Company to
maintain a paying agency outside the United States for payments on Bearer
Securities; (2) reduce the percentage in principal amount of the Outstanding
Senior Debt Securities of any series, the consent of whose Holders is required
for any
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supplemental indenture, or the consent of whose Holders is required for any
waiver of compliance with certain provisions of the Senior Indenture or certain
defaults or Events of Default thereunder and their consequences provided for in
the Senior Indenture; (3) modify any of the provisions of the Senior Indenture
which provide for waivers by the Holders of Senior Debt Securities of past
defaults or waivers by the Holders of Senior Debt Securities of compliance by
the Company with any covenants, except to increase any such percentage required
to permit such waivers; or (4) modify any of the provisions of the Senior
Indenture which provide that certain other provisions of the Senior Indenture
cannot be modified without the consent of the Holder of each Outstanding Senior
Debt Security of each series affected thereby, except to require that certain
other provisions of the Senior Indenture cannot be modified without the consent
of the Holder of each Outstanding Senior Debt Security of each series affected
thereby.
A modification which changes or eliminates any covenant or other provision
of the Senior Indenture with respect to one or more particular series of Senior
Debt Securities and Coupons, if any, or which modifies the rights of the Holders
of Senior Debt Securities and Coupons of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under the
Senior Indenture of the Holders of Senior Debt Securities and Coupons, if any,
of any other series.
The Holders of not less than a majority in principal amount of the
Outstanding Senior Debt Securities of any series may on behalf of the Holders of
all the Senior Debt Securities of any such series waive, by notice to the
Trustee and the Company, any past default or Event of Default under the Senior
Indenture with respect to such series and its consequences, except a default (1)
in the payment of the principal of (or premium, if any) or interest on any
Senior Debt Security of such series, or in the payment of any sinking fund
installment or analogous obligation with respect to the Senior Debt Securities
of such series, or (2) in respect of a covenant or provision hereof which
pursuant to the second paragraph under "Modification and Waiver" cannot be
modified or amended without the consent of the Holder of each Outstanding Senior
Debt Security of such series affected. Upon any such waiver, such default will
cease to exist, and any Event of Default arising therefrom will be deemed to
have been cured, for every purpose of the Senior Debt Securities of such series
under the Senior Indenture, but no such waiver will extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
The Company may omit in any particular instance to comply with certain
covenants in the Senior Indenture (including, if so specified in the Prospectus
Supplement, any covenant not set forth in the Senior Indenture but specified in
the Prospectus Supplement to be applicable to the Senior Debt Securities of any
series issued thereunder, except as otherwise specified in the Prospectus
Supplement, and including the covenants relating to the maintenance by the
Company of its existence, rights and franchises, and the limitation on liens and
the limitation on sale and leaseback transactions) if before the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Senior Debt Securities of such series either waive such compliance
in such instance or generally waive compliance with such provisions, but no such
waiver may extend to or affect any term, provision or condition except to the
extent expressly so waived, and, until such waiver becomes effective, the
obligations of the Company and the duties of the Trustee in respect of any such
provision will remain in full force and effect.
DISCHARGE, LEGAL DEFEASANCE AND COVENANT DEFEASANCE
The Senior Indenture with respect to the Senior Debt Securities of any
series may be discharged, subject to certain terms and conditions, when (1)
either (A) all Senior Debt Securities and the Coupons, if any, of such series
have been delivered to the Trustee for cancellation, or (B) all Senior Debt
Securities and the Coupons, if any, of such series not theretofore delivered to
the Trustee for cancellation (i) have become due and payable, (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 by the Trustee, and the Company, in the case of
(i), (ii) or (iii) of subclause (B), has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for such purpose an amount in
the currency in which such Senior Debt Securities are denominated sufficient to
pay and discharge the entire indebtedness on such Senior Debt Securities for
principal (and premium, if any) and interest to the date of such deposit (in the
case of Senior Debt Securities which have become due and payable) or to the
Stated Maturity or
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Redemption Date, as the case may be, provided, however, in the event a petition
for relief under the applicable Federal or state bankruptcy, insolvency or other
similar law is filed with respect to the Company within 91 days after the
deposit and the Trustee is required to return the deposited money to the
Company, the obligations of the Company under the Senior Indenture with respect
to such Senior Debt Securities will not be deemed terminated or discharged; (2)
the Company has paid or caused to be paid all other sums payable under the
Senior Indenture by the Company; (3) the Company has delivered to the Trustee an
officers' certificate and an opinion of counsel each stating that all conditions
precedent therein provided relating to the satisfaction and discharge of the
Senior Indenture with respect to such series have been complied with; and (4)
the Company has delivered to the Trustee an opinion of counsel or a ruling of
the Internal Revenue Service to the effect that such deposit and discharge will
not cause the Holders of the Senior Debt Securities of such series to recognize
income, gain or loss for Federal income tax purposes.
If provision is made for the defeasance of Senior Debt Securities of a
series, and if the Senior Debt Securities of such series are Registered
Securities and denominated and payable only in U.S. dollars, then the provisions
of the Senior Indenture relating to defeasance shall be applicable except as
otherwise specified in the Prospectus Supplement for Senior Debt Securities of
such series. Defeasance provisions, if any, for Senior Debt Securities
denominated in a foreign currency or currencies or for Bearer Securities may be
specified in the Prospectus Supplement.
At the Company's option, either (a) the Company shall be deemed to have
been Discharged (as defined below) from its obligations with respect to Senior
Debt Securities of any series ("legal defeasance option") or (b) the Company
shall cease to be under any obligation to comply with certain provisions of the
Senior Indenture relating to mergers and consolidations of the Company, the
provisions relating to limitations on liens and limitations on sale and
leaseback transactions (and, if so specified, any other obligation of the
Company or restrictive covenant added for the benefit of such series ("covenant
defeasance option")) at any time after the applicable conditions set forth below
have been satisfied: (1) the Company 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 Senior Debt Securities of such series, money in an amount, or (ii) U.S.
Government Obligations 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 any mandatory sinking
fund payments) of and premium, if any, and interest on, the Outstanding Senior
Debt Securities of such series on the dates such installments of interest or
principal and premium are due; (2) such deposit shall not cause the Trustee with
respect to the Senior Debt Securities of that series to have a conflicting
interest with respect to the Senior Debt Securities of any series; (3) such
deposit will not result in a breach or violation of, or constitute a default
under, the Senior Indenture or any other agreement or instrument to which the
Company is a party or by which it is bound; (4) if the Senior Debt Securities of
such series are then listed on any national securities exchange, the Company
shall have delivered to the Trustee an opinion of counsel or a letter or other
document from such exchange to the effect that the Company's exercise of its
legal defeasance option or the covenant defeasance option, as the case may be,
would not cause such Senior Debt Securities to be delisted; (5) no Event of
Default or event (including such deposit) which, with notice or lapse of time or
both, would become an Event of Default with respect to the Senior Debt
Securities of such series shall have occurred and be continuing on the date of
such deposit and, with respect to the legal defeasance option only, no Event of
Default under the provisions of the Senior Indenture relating to certain events
of bankruptcy or insolvency or event which with the giving of notice or lapse of
time, or both, would become an Event of Default under such bankruptcy or
insolvency provisions shall have occurred and be continuing on the 91st day
after such date; and (6) certain other opinions, officers' certificates and
other documents specified in the Senior Indenture, including an opinion of
counsel or a ruling of the Internal Revenue Service to the effect that such
deposit, defeasance or Discharge will not cause the Holders of the Senior Debt
Securities of such series to recognize income, gain or loss for Federal income
tax purposes. Notwithstanding the foregoing, if the Company exercises its
covenant defeasance option and an Event of Default under the provisions of the
Senior Indenture relating to certain events of bankruptcy or insolvency or event
which with the giving of notice or
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lapse of time, or both, would become an Event of Default under such bankruptcy
or insolvency provisions shall have occurred and be continuing on the 91st day
after the date of such deposit, the obligations of the Company referred to under
the definition of covenant defeasance option with respect to such Senior Debt
Securities shall be reinstated in full.
PAYMENT AND PAYING AGENTS
If Senior Debt Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for such series
an office or agency where Senior Debt Securities of that series may be presented
or surrendered for payment, where Senior Debt Securities of that series may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Senior Debt Securities of that
series and the Senior Indenture may be served.
If Senior Debt Securities of a series are issuable as Bearer Securities,
the Company will maintain or cause to be maintained (A) in the Borough of
Manhattan, The City and State of New York, an office or agency where any
Registered Securities of that series may be presented or surrendered for
payment, where any Registered Securities of that series may be surrendered for
registration of transfer, where Senior Debt Securities of that series may be
surrendered for exchange or redemption and where notices and demands to or upon
the Company in respect of the Senior Debt Securities of that series and the
Senior Indenture may be served and where Bearer Securities of that series and
related Coupons may be presented or surrendered for payment in the circumstances
described in the following paragraph (and not otherwise), (B) subject to any
laws or registration applicable thereto, in a Place of Payment for that series
which is located outside the United States, an office or agency where Senior
Debt Securities of that series and related Coupons may be presented and
surrendered for payment (including payment of any additional amounts payable on
Senior Debt Securities of that series, if so provided in such series); provided,
however, that if the Senior Debt Securities of that series are listed on The
Stock Exchange of the United Kingdom and the Republic of Ireland, the Luxembourg
Stock Exchange or any other stock exchange located outside the United States and
such stock exchange shall so require, the Company will maintain a Paying Agent
for the Senior Debt Securities of that series in London, Luxembourg or any other
required city located outside the United States, as the case may be, so long as
the Debt Securities of that series are listed on such exchange, and (C) subject
to any laws or regulations applicable thereto, in a Place of Payment for that
series located outside the United States, an office or agency where any
Registered Securities of that series may be surrendered for registration of
transfer, where Senior Debt Securities of that series may be surrendered for
exchange or redemption and where notices and demands to or upon the Company in
respect of the Senior Debt Securities of that series and the Senior Indenture
may be served. The Company will give prompt written notice to the Trustee of the
locations, and any change in the locations, of such offices or agencies. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
corporate trust office of the Trustee, except that Bearer Securities of that
series and the related Coupons may be presented and surrendered for payment at
the offices specified in the applicable Senior Debt Security and the Company has
appointed the Trustee (or in the case of Bearer Securities may appoint such
other agent as may be specified in the applicable Prospectus Supplement) as its
agent to receive all presentations, surrenders, notices and demands.
No payment of principal, premium or interest on Bearer Securities shall be
made at any office or agency of the Company in the United States or by check
mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, that, if
the Senior Debt Securities of a series are denominated and payable in U.S.
dollars, payment of principal of and any premium and interest on Senior Debt
Securities of such series, if specified in the applicable Prospectus Supplement,
shall be made at the office of the Company's Paying Agent in the Borough of
Manhattan, The City and State of New York, if (but only if) payment in U.S.
dollars of the full amount of such principal, premium, interest or additional
amounts, as the case may be, at all offices or agencies outside the United
States maintained for the purpose by the Company in accordance with the Senior
Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
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BOOK-ENTRY SENIOR DEBT SECURITIES
The Senior Debt Securities of a series may be issued in whole or in part in
global form that will be deposited with, or on behalf of, a depositary
identified in the applicable Prospectus Supplement. Global Notes may be issued
in either registered or bearer form and in either temporary or permanent form
(each a "Global Note"). Payments of principal of (premium, if any) and interest
on Senior Debt Securities represented by a Global Note will be made by the
Company to the Trustee and then by the Trustee to the depositary.
If specified in the applicable Prospectus Supplement, any Global Notes will
be deposited with, or on behalf of, The Depository Trust Company, New York, New
York ("DTC"), as depositary, or such other depositary as may be specified in the
applicable Prospectus Supplement. In the event that DTC acts as depositary with
respect to any Global Notes, the Company anticipates that such Global Notes will
be registered in the name of DTC's nominee, and that the following provisions
will apply to the depositary arrangements with respect to any such Global Notes.
Additional or differing terms of the depositary arrangements, if any, applicable
to the Offered Securities, will be described in the accompanying Prospectus
Supplement.
So long as DTC or its nominee is the registered owner of a Global Note, DTC
or its nominee, as the case may be, will be considered the sole Holder of the
Senior Debt Securities represented by such Global Note for all purposes under
the Senior Indenture. Except as provided below, owners of beneficial interests
in a Global Note will not be entitled to have Senior Debt Securities represented
by such Global Note registered in their names, will not receive or be entitled
to receive physical delivery of Senior Debt Securities in certificated form and
will not be considered the owners or Holders thereof under the Senior Indenture.
The laws of some states require that certain purchasers of securities take
physical delivery of such securities in certificated form; accordingly, such
laws may limit the transferability of beneficial interests in a Global Note.
If DTC 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 individual Senior Debt Securities in certificated form in exchange
for the Global Notes. In addition, the Company may at any time, and in its sole
discretion, determine not to have any Senior Debt Securities represented by one
or more Global Notes and, in such event, will issue individual Senior Debt
Securities in certificated form in exchange for the relevant Global Notes. If
Registered Securities of any series shall have been issued in the form of one or
more Global Notes and if an Event of Default with respect to the Senior Debt
Securities of such series shall have occurred and be continuing, the Company
will issue individual Senior Debt Securities in certificated form in exchange
for the relevant Global Notes.
The following is based on information furnished by DTC:
DTC is a limited-purpose trust company organized under the Banking Law of
the State of New York, a "banking organization" within the meaning of the
Banking Law of the State of New York, a member of the Federal Reserve System, a
clearing corporation within the meaning of the New York Uniform Commercial Code,
and a "clearing agency" registered pursuant to the provisions of section 17A of
the Exchange Act. DTC holds securities that its participants ("Participants")
deposit with DTC. DTC also facilitates the settlement among Participants of
securities transactions, such as transfers and pledges, in deposited securities
through electronic computerized book-entry changes in Participants' accounts,
thereby eliminating the need for physical movement of securities certificates.
Direct Participants include securities brokers and dealers, banks, trust
companies, clearing corporations and certain other organizations ("Direct
Participants"). DTC is owned by a number of its Direct Participants and by the
New York Stock Exchange, Inc., the American Stock Exchange, Inc. and the
National Association of Securities Dealers, Inc. Access to the DTC system is
also available to others such as securities brokers and dealers, banks and trust
companies that clear through or maintain a custodial relationship with a Direct
Participant, either directly or indirectly ("Indirect Participants"). The rules
applicable to DTC and its Participants are on file with the Commission.
Purchases of Senior Debt Securities under the DTC system must be made by or
through Direct Participants, which will receive a credit for the Senior Debt
Securities on DTC's records. The ownership interest of each actual purchaser of
each Senior Debt Security ("Beneficial Owner") is in turn recorded on
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the Direct and Indirect Participants' records. A Beneficial Owner does not
receive written confirmation from DTC of its purchase, but such Beneficial Owner
is expected to receive a written confirmation providing details of the
transaction, as well as periodic statements of its holdings, from the Direct or
Indirect Participant through which such Beneficial Owner entered into the
transaction. Transfers of ownership interests in Senior Debt Securities are
accomplished by entries made on the books of Participants acting on behalf of
Beneficial Owners. Beneficial Owners do not receive certificates representing
their ownership interests in Senior Debt Securities, except in the event that
use of the book entry system for the Senior Debt Securities is discontinued.
To facilitate subsequent transfers, the Senior Debt Securities are
registered in the name of DTC's partnership nominee, Cede & Co. The deposit of
the Senior Debt Securities with DTC and their registration in the name of Cede &
Co. effects no change in beneficial ownership. DTC has no knowledge of the
actual Beneficial Owners of the Senior Debt Securities; DTC records reflect only
the identity of the Direct Participants to whose accounts Senior Debt Securities
are credited, which may or may not be the Beneficial Owners. The Participants
remain responsible for keeping account of their holdings on behalf of their
customers.
Delivery of notices and other communications by DTC to Direct Participants,
by Direct Participants to Indirect Participants, and by Direct Participants and
Indirect Participants to Beneficial Owners are governed by arrangements among
them, subject to any statutory or regulatory requirements as may be in effect
from time to time.
Neither DTC nor Cede & Co. will consent or vote with respect to the Senior
Debt Securities. Under its usual procedures, DTC mails a proxy (an "Omnibus
Proxy") to the issuer as soon as possible after the record date. The Omnibus
Proxy assigns Cede & Co.'s consenting or voting rights to those Direct
Participants to whose accounts the Senior Debt Securities are credited on the
record date (identified on a list attached to the Omnibus Proxy).
Principal and interest payments on the Senior Debt Securities will be made
to DTC. DTC's practice is to credit Direct Participants' accounts on the payable
date in accordance with their respective holdings as shown on DTC's records
unless DTC has reason to believe that it will not receive payment on the payable
date. Payments by Participants to Beneficial Owners will be governed by standing
instructions and customary practices, as is the case with securities held for
the accounts of customers in bearer form or registered in "street name," and
will be the responsibility of such Participant and not of DTC, the Paying Agent
or the Company, subject to any statutory or regulatory requirements as may be in
effect from time to time. Payment of principal and interest to DTC is the
responsibility of the Company or the Paying Agent, disbursement of such payments
to Direct Participants is the responsibility of DTC, and disbursement of such
payments to the Beneficial Owners will be the responsibility of Direct and
Indirect Participants.
DTC may discontinue providing its services as securities depositary with
respect to the Senior Debt Securities at any time by giving reasonable notice to
the Company or the Paying Agent. Under such circumstances, in the event that a
successor securities depositary is not appointed, Senior Debt Security
certificates are required to be printed and delivered.
The Company may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depositary). In that event,
Senior Debt Security certificates will be printed and delivered.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources (including DTC) that the Company believes to be
reliable, but the Company takes no responsibility for the accuracy thereof.
Unless stated otherwise in the applicable Prospectus Supplement, the
underwriters or agents with respect to a series of Senior Debt Securities issued
as Global Notes will be Direct Participants in DTC.
None of the Company, any underwriter or agent, the Trustee or any
applicable Paying Agent will have the responsibility or liability for any aspect
of the records relating to or payments made on account of
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beneficial interests in a Global Note, or for maintaining, supervising or
reviewing any records relating to such beneficial interests.
THE TRUSTEE UNDER THE SENIOR INDENTURE
Chemical Bank is one of a number of banks with which the Company maintains
ordinary banking relationships. Chemical Bank currently acts as registrar,
transfer agent and dividend disbursing agent for the Company. In addition,
Chemical Bank currently provides cash management services to the Company.
GOVERNING LAW
The Senior Indenture, the Senior Debt Securities and the Coupons for all
purposes will be governed by and construed in accordance with the laws of the
State of New York.
CERTAIN DEFINITIONS
Set forth below is a summary of certain defined terms used in the Senior
Indenture. Reference is made to the Senior Indenture for the full definition of
all such terms.
"Attributable Debt" means, with respect to a Sale and Leaseback Transaction
with respect to any Principal Property, the lesser of: (a) the fair market value
of such property (as determined in good faith by the Board of Directors of the
Company); or (b) the present value of the total net amount of rent required to
be paid under such lease during the remaining term thereof (including any period
for which such lease has been extended and excluding any unexercised renewal or
other extension options exercisable by the lessee, and excluding amounts on
account of maintenance and repairs, services, taxes and similar charges and
contingent rents), discounted at the rate of interest set forth or implicit in
the terms of such lease (or, if not practicable to determine such rate, the
weighted average interest rate per annum borne by the Senior Debt Securities of
the applicable series then Outstanding) compounded semi-annually. In the case of
any lease which is terminable by the lessee upon the payment of a penalty, such
net amount shall be the lesser of the net amount determined assuming termination
upon the first date such lease may be terminated (in which case the net amount
shall also include the amount of the 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) or the net amount determined assuming no such termination.
"Consolidated Net Tangible Assets" at any time, means the excess over
current liabilities of all assets, less goodwill, trademarks, patents, other
like intangibles and the minority interests of others in Subsidiaries, of the
Company and its consolidated Subsidiaries, determined on a consolidated basis in
accordance with generally accepted accounting principles, as of the end of the
most recently completed accounting period of the Company for which financial
information is then available.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Senior Debt Securities of such series and to have satisfied all the obligations
under the Senior Indenture relating to the Senior Debt Securities of such
series, except (i) the right of Holders of Senior Debt Securities of such series
to receive, from the trust fund described under "Discharge, Legal Defeasance and
Covenant Defeasance" above, payment of the principal of (and premium, if any)
and interest on such Senior Debt Securities when such payments are due, the
Company's obligations with respect to the Senior Debt Securities of such series
under the provisions relating to exchanges, transfers and replacement of Senior
Debt Securities, the maintenance of an office or agency of the Company and the
defeasance trust fund, the provisions relating to compensation and reimbursement
of the Trustee and (iii) the rights, powers, trusts, duties and immunities of
the Trustee thereunder.
"Funded Debt" means any indebtedness for money borrowed, created, issued,
incurred, assumed or guaranteed which would, in accordance with generally
accepted accounting principles, be classified as long-term debt, but in any
event including all indebtedness for money borrowed, whether secured or
unsecured, maturing more than one year or extendible at the option of the
obligor to a date more than one year, after the date of determination thereof
(excluding any amount thereof included in current liabilities).
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"Principal Property" means any parcel of real property and related fixtures
or improvements owned by the Company or any Restricted Subsidiary and located in
the United States, the aggregate book value of which, less accumulated
depreciation, on the date of determination exceeds $5 million, other than any
such real property and related fixtures or improvements which, as determined in
good faith by the Board of Directors of the Company, is not of material
importance to the total business conducted by the Company and its Subsidiaries,
taken as a whole.
"Restricted Subsidiary" means, with respect to the Company, any
"significant subsidiary" as such term is defined in Rule 1-02(w) of Regulation
S-X under the Securities Act of 1933, as amended (the "Securities Act");
provided, however, that a Subsidiary shall be considered not to be a Restricted
Subsidiary if (a) it is principally engaged in the business of finance, banking,
credit, leasing, insurance, investments, financial services or other similar
operations, or any combination thereof; (b) it is principally engaged in
financing the Company's operations outside the continental United States of
America; (c) substantially all of its assets consist of the capital stock of one
or more of the Subsidiaries engaged in the operations described in the preceding
clause (a) or (b) or any combination thereof; (d) a majority of its voting stock
shall at the time be owned directly or indirectly by one or more Subsidiaries
which are not Restricted Subsidiaries; or (e) (i) it has issued and sold either
(x) equity securities with aggregate net proceeds in excess of $10,000,000 or
(y) debt securities aggregating $10,000,000 or more in principal amount, or (ii)
the Company has sold equity securities of such Subsidiary with aggregate net
proceeds to the Company in excess of $10,000,000; provided, however, that the
securities referred to in this clause (e) were issued under a registration
statement filed with the Commission pursuant to the provisions of Section 6 of
the Securities Act.
"Sale and Leaseback Transaction" means any arrangement with any person
providing for the leasing by the Company or any Restricted Subsidiary of any
Principal Property which has been or is to be sold or transferred by the Company
or such Restricted Subsidiary to such person; provided, however, that "Sale and
Leaseback Transaction" shall not include such arrangements that were existing on
the date of the Senior Indenture or at the time any person owning a Principal
Property shall become a Restricted Subsidiary.
"Subsidiary" means any corporation of which at least a majority of the
outstanding stock having by the terms thereof ordinary voting power to elect a
majority of the directors of such corporation, irrespective of whether or not at
the time stock of any other class or classes of such corporation shall have or
might have voting power by reason of the happening of any contingency, is at the
time, directly or indirectly, owned or controlled by the Company or by one or
more Subsidiaries thereof, or by the Company and one or more Subsidiaries
thereof.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged, or (ii) obligations of a person controlled or supervised by
and acting as an agency or instrumentality of the United States the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case under clause (i) or (ii), are not callable
or redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation or a specific payment of interest on (or
principal of) any such U.S. Government Obligation held by such custodian for the
account of the holder of a depository receipt; provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligation evidenced by such
depository receipt.
PLAN OF DISTRIBUTION
The Company may sell the Offered Securities in four ways: (i) directly to
purchasers, (ii) through agents, (iii) through underwriters and (iv) through
dealers.
Offers to purchase Offered Securities may be solicited directly by the
Company and sales thereof may be made by the Company directly to institutional
investors or others. The terms of any such sales will be set forth in the
accompanying Prospectus Supplement.
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Offers to purchase Offered Securities may be solicited by agents designated
by the Company from time to time. Any such agent, who may be deemed to be an
underwriter as that term is defined in the Securities Act, involved in the offer
or sale of the Offered Securities in respect of which this Prospectus is
delivered will be named, and any commissions payable by the Company to such
agent set forth, in the accompanying Prospectus Supplement. Unless otherwise
indicated in the accompanying Prospectus Supplement, any such agent will be
acting on a reasonable efforts basis for the period of its appointment. Agents
may be entitled under agreements which may be entered into with the Company to
indemnification by the Company against certain civil liabilities, including
liabilities under the Securities Act, and may be customers of, engage in
transactions with or perform services for the Company in the ordinary course of
business.
If any underwriters are utilized in the sale of the Offered Securities in
respect of which this Prospectus is delivered, the Company will enter into an
underwriting agreement with such underwriters at the time of sale to them and
the names of the specific managing underwriter or underwriters, as well as any
other underwriters and the terms of the transaction will be set forth in the
accompanying Prospectus Supplement, which will be used by the underwriters to
make resales of the Offered Securities in respect of which this Prospectus is
delivered to the public. The underwriters may be entitled, under the relevant
underwriting agreement, to indemnification by the Company against certain
liabilities, including liabilities under the Securities Act, and may be
customers of, engage in transactions with or perform services for the Company in
the ordinary course of business.
If a dealer is utilized in the sale of the Offered Securities in respect of
which this Prospectus is delivered, the Company will sell such Offered
Securities to the dealer, as principal. The dealer may then resell such Offered
Securities to the public at varying prices to be determined by such dealer at
the time of resale. Dealers may be entitled to indemnification by the Company
against certain liabilities, including liabilities under the Securities Act, and
may be customers of, engage in transactions with or perform services for the
Company in the ordinary course of business.
Offered Securities may also be offered and sold, if so indicated in the
accompanying Prospectus Supplement, in connection with a remarketing upon their
purchase, in accordance with their terms, by one or more firms ("remarketing
firms"), acting as principals for their own accounts or as agents for the
Company. Any remarketing firm will be identified and the terms of its agreement,
if any, with the Company and its compensation will be described in the
accompanying Prospectus Supplement. Remarketing firms may be entitled under
agreements which may be entered into with the Company to indemnification by the
Company against certain civil liabilities, including liabilities under the
Securities Act, and may be customers of, engage in transactions with or perform
services for the Company in the ordinary course of business.
If so indicated in the accompanying Prospectus Supplement, the Company will
authorize agents and underwriters or dealers to solicit offers by certain
purchasers to purchase Offered Securities from the Company at the public
offering price set forth in the accompanying Prospectus Supplement pursuant to
delayed delivery contracts providing for payments and delivery on a specified
date in the future. Such contracts will be subject to only those conditions set
forth in the accompanying Prospectus Supplement, and the accompanying Prospectus
Supplement will set forth the commission payable for solicitation of such
offers.
Any underwriters, agents or dealers utilized in the sale of Offered
Securities will not confirm sales to accounts over which they exercise
discretionary authority.
LEGAL MATTERS
The validity of the Offered Securities will be passed upon for the Company
by Simpson Thacher & Bartlett (a partnership which includes professional
corporations), New York, New York, and for any underwriters by counsel as may be
specified in accompanying prospectus supplements. In rendering such opinion,
Simpson Thacher & Bartlett will be relying as to matters of Connecticut law upon
the opinion of Richard W. Davies, Esq. As of August 1, 1995, lawyers of Simpson
Thacher & Bartlett who have participated in the preparation of the Registration
Statement of which this Prospectus is a part beneficially owned 1,199 shares of
Class A Common Stock and 220 shares of Class B Common Stock of the Company. In
addition,
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a member of Simpson Thacher & Bartlett serves as a director of the Company. As
of August 1, 1995, Mr. Davies, General Counsel and Secretary of the Company,
beneficially owned 9,275 shares of Class A Common Stock and 9,650 shares of
Class B Common Stock of the Company and 8,500 shares of Class A Common Stock and
16,252 shares of Class B Common Stock of the Company obtainable within sixty
days of August 1, 1995 by the exercise of stock options pursuant to the
Company's 1973 Stock Option Plan for Key Employees.
EXPERTS
The consolidated financial statements incorporated in this Prospectus by
reference to the Annual Report on Form 10-K for the year ended December 31, 1994
have been so incorporated in reliance on the report of Price Waterhouse LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated expenses of issuance and distribution are:
AMOUNT TO BE PAID
-----------------
Securities and Exchange Commission Registration Fee.................. $ 68,965
Blue Sky Fees and Expenses........................................... 15,000
Legal Fees and Expenses.............................................. 100,000
Accountants' Fees and Expenses....................................... 35,000
Printing and Engraving Expenses...................................... 65,000
Trustee's Fees and Expenses.......................................... 15,000
Miscellaneous........................................................ 30,000
---------
Total.............................................................. $ 328,965
=========
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Directors and officers of the Company shall be indemnified against certain
actions pursuant to Connecticut General Statutes Title 33, Section 320(a).
Connecticut General Statutes Title 33, Section 320(a) provides that a
corporation shall indemnify a director and an officer, as well as other
employees and individuals (including eligible outside parties) made a party to
any proceeding, other than an action by or in the right of the corporation,
against judgments, fines, penalties, amounts paid in settlement and reasonable
expenses actually incurred by him and the person whose legal representative he
is. The corporation shall not so indemnify any such person unless (i) such
person was successful on the merits in the defense of any proceeding referred to
above, or (ii) it shall be concluded that such person acted in good faith and in
a manner he reasonably believed to be in the best interests of the corporation,
or (iii) the court, on application for indemnification, shall have determined
that in view of all the circumstances such person is fairly and reasonably
entitled to be indemnified. A similar standard is applicable in the case of an
alleged claim based upon the purchase or sale of securities, except that the
corporation shall only indemnify such person after application to the court in
accordance with item (iii) above. In the case of a proceeding by or in the right
of the corporation, however, a corporation shall indemnify such person only
where such person is finally adjudged not to have breached his duty to the
corporation or after application to the court in accordance with item (iii)
above. Connecticut General Statutes Title 33, Section 320(a) also provides that
a corporation may maintain insurance against liabilities for which
indemnification is not expressly provided by statute.
Connecticut General Statutes Title 33, Section 290 provides that a
corporation may include in its certificate of incorporation a provision limiting
the personal liability of a director to the corporation or its shareholders for
monetary damages for breach of duty as a director to an amount that is not less
than the compensation received by the director for serving the corporation as a
director during the year of the violation if such breach did not (i) involve a
knowing and culpable violation of law, (ii) enable the director or an associate
to receive an improper personal economic gain, (iii) show a lack of good faith
and a conscious disregard for the duty of the director to the corporation, (iv)
constitute a sustained and unexcused pattern of inattention that amounted to an
abdication of his duty to the corporation or (v) create liability under certain
other provisions of the statute. The statute contains a proviso that no such
provision shall limit or preclude the liability of a director for any act or
omission occurring prior to June, 1989, the effective date of such provision. A
charter amendment was approved by the Company's shareholders on May 7, 1990, so
limiting the personal liability of the Company's directors to the Company and
its shareholders, subject to certain exceptions and conditions.
The Company has in effect liability insurance policies covering certain
claims against any of its officers or directors by reason of certain breaches of
duty, neglect, error, misstatement, omission or other act committed or alleged
to have been committed by such person in his capacity as officer or director.
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ITEM 16. EXHIBITS
1 Form of Underwriting Agreement.
4.1 Restated Certificate of Incorporation of the Company and amendments
thereto.
4.2 By-Laws of the Company (incorporated by reference to Exhibit 3b to the
Company's Annual Report on Form 10-K, for the fiscal year ended
December 31, 1989, as filed with the Securities and Exchange
Commission on March 26, 1990).
4.3 Form of Senior Indenture.
5 Opinion of Simpson Thacher & Bartlett.
12 Statement Regarding Computation of Ratios of Earnings to Fixed
Charges.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Simpson Thacher & Bartlett (included in Exhibit 5).
24 Powers of Attorney.
25 Statement of Eligibility of Trustee.
ITEM 17. UNDERTAKINGS
The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in this Registration Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration
Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if this
Registration Statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or 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 this Registration Statement shall be
deemed to be a new registration statement
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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 foregoing provisions or otherwise, the Registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
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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 Town of Orange, State of Connecticut, on August 17, 1995.
HUBBELL INCORPORATED
By: /s/ G.J. RATCLIFFE
--------------------
G.J. Ratcliffe
Chairman of the Board, President,
Chief Executive Officer and Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ G.J. RATCLIFFE Chairman of the Board, August 17, 1995
------------------------------------------ President, Chief Executive
G.J. Ratcliffe Officer and Director
/s/ H.B. ROWELL, JR. Executive Vice President August 17, 1995
------------------------------------------ (Chief Financial and
H.B. Rowell, Jr. Accounting Officer)
/s/ * Director August 17, 1995
------------------------------------------
E.R. Brooks
/s/ * Director August 17, 1995
------------------------------------------
G.W. Edwards, Jr.
/s/ * Director August 17, 1995
------------------------------------------
J.S. Hoffman
/s/ * Director August 17, 1995
------------------------------------------
H.G. McDonell
/s/ * Director August 17, 1995
------------------------------------------
A. McNally IV
/s/ * Director August 17, 1995
------------------------------------------
D.J. Meyer
/s/ * Director August 17, 1995
------------------------------------------
J.A. Urquhart
II-4
26
SIGNATURE TITLE DATE
--------- ----- ----
/s/ * Director August 17, 1995
------------------------------------------
M. Wallop
*By: /s/ R. W. DAVIES Director August 17, 1995
------------------------------------------
R.W. Davies
Attorney-in-Fact
II-5
27
EXHIBIT INDEX
Number Description of Exhibit
---------------------------------------------------------------------------------------------
1 Form of Underwriting Agreement.
4.1 Restated Certificate of Incorporation of the Company and amendments thereto.
4.2 By-Laws of the Company (incorporated by reference to Exhibit 3b to the Company's
Annual Report on Form 10-K, for the fiscal year ended December 31, 1989, as
filed with the Securities and Exchange Commission on March 26, 1990).
4.3 Form of Senior Indenture.
5 Opinion of Simpson Thacher & Bartlett.
12 Statement Regarding Computation of Ratios of Earnings to Fixed Charges.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Simpson Thacher & Bartlett (included in Exhibit 5).
24 Powers of Attorney.
25 Statement of Eligibility of Trustee.
II-6
1
HUBBELL INCORPORATED
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
August __, 1995
From time to time, Hubbell Incorporated, a Connecticut
corporation (the "Company"), may enter into one or more underwriting agreements
that provide for the sale of designated securities to the several underwriters
named therein. The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (an "Underwriting Agreement"). The
Underwriting Agreement, including the provisions incorporated therein by
reference, is herein sometimes referred to as this Agreement. Terms defined in
the Underwriting Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, including a prospectus,
relating to the Debt Securities and has filed with, or transmitted for filing
to, or shall promptly hereafter file with, or transmit for filing to, the
Commission a prospectus supplement (the "Prospectus Supplement") specifically
relating to the Offered Securities pursuant to Rule 424 under the Securities Act
of 1933, as amended (the "Securities Act"). The term "Registration Statement"
means the registration statement, including the exhibits thereto, as amended to
the date of this Agreement. If the Company files an abbreviated registration
statement to register additional Debt Securities pursuant to Rule 462(b) under
the Securities Act (the "Rule 462 Registration Statement"), then any reference
herein to the term "Registration Statement" shall be deemed to include such
Rule 462 Registration Statement. The term "Basic Prospectus" means the
prospectus included in the Registration Statement. The term "Prospectus" means
the Basic Prospectus together with the Prospectus Supplement. The term
"preliminary prospectus" means a preliminary prospectus supplement specifically
relating to the
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Offered Securities, together with the Basic Prospectus. As used herein, the
terms "Basic Prospectus," "Prospectus" and "preliminary prospectus" shall
include in each case the documents incorporated by reference therein. The terms
"supplement," "amendment" and "amend" as used herein shall include all documents
deemed to be incorporated by reference in the Prospectus that are filed
subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
The term "Contract Securities" means the Offered Securities to
be purchased pursuant to the delayed delivery contracts substantially in the
form of Schedule I hereto, with such changes therein as the Company may approve
(the "Delayed Delivery Contracts"). The term "Underwriters' Securities" means
the Offered Securities other than Contract Securities.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or, to the Company's
knowledge, are threatened by the Commission.
(b) (i) Each document filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) each part of
the Registration Statement, when such part became effective, did not contain,
and each such part, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, (iii) the Registration Statement and the Prospectus comply, and, as
amended or supplemented, if applicable, will comply in all material respects
with the Securities Act and the applicable rules and regulations of the
Commission thereunder and (iv) the Prospectus does not contain and, as amended
or supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in this
Section
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1(b) do not apply (A) to statements or omissions in the Registration Statement
or the Prospectus or supplement or amendment based upon information relating to
any Underwriter furnished to the Company in writing by such Underwriter through
the Manager expressly for use therein or (B) to that part of the Registration
Statement that constitutes the Statement of Eligibility (Form T-1) under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), of the
Trustee.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation, has the corporate power and authority to own its property and
to conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(d) Each of the Company's "significant subsidiaries" as such
term is defined in Rule 1-02(w) of Regulation S-X under the Securities Act has
been duly incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the corporate power
and authority to own its property and to conduct its business as described in
the Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken as a whole.
(e) This Agreement has been duly authorized, executed
and delivered by the Company.
(f) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, enforceable in
accordance with its terms subject to the effects of bankruptcy, insolvency or
similar laws affecting creditors' rights generally and except as rights of
acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
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(g) The Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company and are valid and binding agreements of
the Company, enforceable in accordance with their respective terms subject to
the effects of bankruptcy, insolvency or similar laws affecting creditors'
rights generally and except as the availability of equitable remedies may be
limited by equitable principles of general applicability.
(h) The Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Underwriters in accordance with the terms
of the Underwriting Agreement, in the case of the Underwriters' Securities, or
by institutional investors in accordance with the terms of the Delayed Delivery
Contracts, in the case of the Contract Securities, will be entitled to the
benefits of the Indenture and will be valid and binding obligations of the
Company, in each case enforceable in accordance with their respective terms
subject to the effects of bankruptcy, insolvency or similar laws affecting
creditors' rights generally and except as rights of acceleration, if any, and
the availability of equitable remedies may be limited by equitable principles of
general applicability.
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Indenture, the Offered Securities and the Delayed Delivery Contracts will not
contravene any provision of applicable law or the certificate of incorporation
or by-laws of the Company or any agreement or other instrument binding upon the
Company or any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any
subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the
Indenture, the Offered Securities and the Delayed Delivery Contracts, except
such as may be required by the securities or Blue Sky laws of the various states
in connection with the offer and sale of the Offered Securities and such as have
been obtained.
(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the financial
condition or results of operations of the Company and its subsidiaries, taken as
a whole, from that set forth in the Prospectus.
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(k) There are no legal or governmental proceedings pending or,
to the Company's knowledge, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or any
of its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed or
incorporated by reference as exhibits to the Registration Statement that are not
described, filed or incorporated as required.
2. DELAYED DELIVERY CONTRACTS. If the Prospectus provides for
sales of Offered Securities pursuant to Delayed Delivery Contracts, the Company
hereby authorizes the Underwriters to solicit offers to purchase Contract
Securities on the terms and subject to the conditions set forth in the
Prospectus pursuant to Delayed Delivery Contracts. Delayed Delivery Contracts
may be entered into only with institutional investors approved by the Company of
the types set forth in the Prospectus. On the Closing Date, the Company will pay
to the Manager as compensation for the accounts of the Underwriters the
commission set forth in the Underwriting Agreement in respect of the Contract
Securities. The Underwriters will not have any responsibility in respect of the
validity or the performance of any Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery
Contracts with institutional investors, the aggregate amount of Offered
Securities to be purchased by the several Underwriters shall be reduced by the
aggregate amount of Contract Securities; such reduction shall be applied to the
commitment of each Underwriter pro rata in proportion to the amount of Offered
Securities set forth opposite such Underwriter's name in the Underwriting
Agreement, except to the extent that the Manager determines that such reduction
shall be applied in other proportions and so advises the Company; provided,
however, that the total amount of Offered Securities to be purchased by all
Underwriters shall be the aggregate amount set forth above, less the aggregate
amount of Contract Securities.
3. TERMS OF PUBLIC OFFERING. The Company is advised by the
Manager that the Underwriters propose to make a public offering of their
respective portions of the Underwriters' Securities as soon after this Agreement
has been entered into as in the Manager's judgment is advisable. The terms of
the public offering of the Underwriters' Securities are set forth in the
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Prospectus.
4. PAYMENT AND DELIVERY. Except as otherwise provided in this
Section 4, payment for the Underwriters' Securities shall be made by wire
transfer or by certified or official bank check or checks payable to the order
of the Company in immediately available funds at the time and place set forth in
the Underwriting Agreement, upon delivery to the Manager for the respective
accounts of the several Underwriters of the Underwriters' Securities registered
in such names and in such denominations as the Manager shall request in writing
not less than two full business days prior to the date of delivery, with any
transfer taxes payable in connection with the transfer of the Underwriters'
Securities to the Underwriters duly paid.
5. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of the
Underwriting Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading, in the rating accorded any of the
Company's securities by any "nationally recognized statistical
rating organization," as such term is defined for purposes of
Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the financial
condition or results of operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the
Prospectus that, in the reasonable judgment of the Manager, is
material and adverse and that makes it, in the reasonable
judgment of the Manager, impracticable to market the Offered
Securities on the terms and in the manner contemplated in the
Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in clause (a)(i) above and to
the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date
6
7
and that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or
satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date
an opinion of Simpson Thacher & Bartlett, outside counsel for the
Company, dated the Closing Date, substantially in the form of the draft
heretofore furnished to the Manager.
(d) The Underwriters shall have received on the Closing Date
an opinion of Richard W. Davies, Esq., General Counsel of the Company,
dated the Closing Date, substantially in the form of the draft
heretofore furnished to the Manager.
(e) The Underwriters shall have received on the Closing Date
an opinion of Davis Polk & Wardwell, special counsel for the
Underwriters, dated the Closing Date, substantially in the form of the
draft heretofore furnished to the Manager.
The opinion of Simpson Thacher & Bartlett described in
paragraph (c) above shall be rendered to the Underwriters at the
request of the Company and shall so state therein.
(f) The Underwriters shall have received on the Closing Date a
letter, dated the Closing Date, in form and substance satisfactory to
the Underwriters, from the Company's independent public accountants,
containing statements and information of the type ordinarily included
in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference into the Prospectus; provided that the letter
delivered on the Closing Date shall, if practicable, use a "cut-off
date" not earlier than the date of the Underwriting Agreement.
6. COVENANTS OF THE COMPANY. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
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(a) To furnish the Manager, without charge, a signed copy of
the Registration Statement (including exhibits thereto) and for
delivery to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto) and to furnish to you in New York
City, without charge, prior to 10:00 A.M. local time on the business
day next succeeding the date of the Underwriting Agreement and during
the period mentioned in paragraph (c) below, as many copies of the
Prospectus and any supplements and amendments thereto or to the
Registration Statement as the Manager may reasonably request.
(b) Prior to the termination of the offering of the Offered
Securities, before amending or supplementing the Registration Statement
or the Prospectus with respect to the Offered Securities, to furnish to
the Manager a copy of each such proposed amendment or supplement and
not to file any such proposed amendment or supplement to which the
Manager reasonably objects; provided, however, that the foregoing
requirement shall not apply to any of the Company's periodic filings
with the Commission required to be filed pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act.
(c) If, during such period after the first date of the public
offering of the Offered Securities as in the reasonable opinion of
counsel for the Underwriters the Prospectus is required by law to be
delivered in connection with sales by an Underwriter or dealer, any
event shall occur or condition exist as a result of which it is
necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if, in the
reasonable opinion of counsel for the Underwriters or counsel for the
Company, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and to
the dealers (whose names and addresses the Manager will furnish to the
Company) to which Offered Securities may have been sold by the Manager
on behalf of the Underwriters and to any other dealers upon request,
either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus, as amended or
supplemented, will comply with law; provided, however, that
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any costs incurred by the Company pursuant to this paragraph (c) after
three months from the date of the Underwriting Agreement will be at the
expense of the Underwriters and will be reimbursed by the Manager as
incurred by the Company.
(d) To endeavor to qualify the Offered Securities for offer
and sale under the securities or Blue Sky laws of such jurisdictions as
the Manager shall reasonably request and to maintain such qualification
for as long as the Manager shall reasonably request but in no event
longer than one year; provided that the Company shall not be obligated
to so qualify the Offered Securities if such qualification requires it
to file any general consent to service of process or to register or
qualify as a foreign corporation in any jurisdiction in which it is not
so registered or qualified.
(e) To make generally available to the Company's security
holders and to the Manager as soon as practicable an earning statement
covering a twelve month period beginning on the first day of the first
full fiscal quarter after the date of this Agreement, which earning
statement shall satisfy the provisions of Section 11(a) of the
Securities Act and the rules and regulations of the Commission
thereunder. If such fiscal quarter is the last fiscal quarter of the
Company's fiscal year, such earning statement shall be made available
not later than 90 days after the close of the period covered thereby
and in all other cases shall be made available not later than 45 days
after the close of the period covered thereby.
(f) During the period beginning on the date of the
Underwriting Agreement and continuing to and including the Closing
Date, not to offer, sell, contract to sell or otherwise dispose of any
debt securities of the Company substantially similar to the Offered
Securities (other than (i) the Offered Securities and (ii) commercial
paper issued in the ordinary course of business), without the prior
written consent of the Manager.
(g) Whether or not the transactions contemplated in the
Underwriting Agreement are consummated or the Underwriting Agreement is
terminated, to pay or cause to be paid all expenses incident to the
performance of its obligations under the Underwriting Agreement,
including: (i) the fees, disbursements and expenses of the Company's
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counsel and the Company's accountants in connection with the
registration and delivery of the Offered Securities under the
Securities Act and all other fees or expenses in connection with the
preparation and filing of the Registration Statement, any preliminary
prospectus, the Prospectus and amendments and supplements to any of the
foregoing, including all printing costs associated therewith, and the
mailing and delivering of copies thereof to the Underwriters and
dealers, in the quantities hereinabove specified, (ii) all costs and
expenses related to the transfer and delivery of the Offered Securities
to the Underwriters, including any transfer or other taxes payable
thereon, (iii) the cost of printing or producing any Blue Sky or Legal
Investment memorandum in connection with the offer and sale of the
Offered Securities under state securities laws and all expenses in
connection with the qualification of the Offered Securities for offer
and sale under state securities laws as provided in Section 6(d)
hereof, including filing fees and the reasonable fees and disbursements
of counsel for the Underwriters in connection with such qualification
and in connection with the Blue Sky or Legal Investment memorandum,
(iv) all filing fees and disbursements of counsel to the Underwriters
incurred in connection with the review and qualification of the
Offering by the National Association of Securities Dealers, Inc., (v)
the cost of printing certificates representing the Offered Securities,
(vi) the costs and charges of any transfer agent, registrar or
depositary, (vii) the costs and expenses of the Company relating to
investor presentations on any "road show" undertaken in connection with
the marketing of the offering of the Offered Securities; including,
without limitation, expenses associated with the production of road
show slides and graphics, fees and expenses of any consultants engaged
in connection with the road show presentations with the prior approval
of the Company, travel and lodging expense of the representatives and
officers of the Company and any such consultants, and the cost of any
aircraft chartered in connection with the road show, and (viii) all
other costs and expenses incident to the performance of the obligations
of the Company hereunder for which provision is not otherwise made in
this Section. It is understood, however, that except as provided in
this Section, Section 7 entitled "Indemnification and Contribution",
and the last paragraph of Section 9 below, the Underwriters will pay
all of their costs and expenses, including fees and disbursements of
their counsel, stock transfer taxes payable on resale of any of the
Offered
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Securities by them, and any advertising expenses connected with any
offers they may make.
7. INDEMNIFICATION AND CONTRIBUTION. (a) 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, any
legal or other expenses reasonably incurred by any Underwriter or any such
controlling person in connection with defending or investigating any such action
or claim incurred subsequent to the giving of the notice called for by the first
sentence of paragraph (c) of this Section 7 and with the consent of the Company)
(collectively, "Losses") caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
amendment thereof as to which such Losses relate, any preliminary prospectus or
the Prospectus (or in any amendment thereof or supplement thereto as to which
such Losses relate, if the Company shall have furnished any amendments thereof
or supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such Losses are caused by
any such untrue statement or omission or alleged untrue statement or omission
based upon information relating to any Underwriter furnished to the Company in
writing by such Underwriter through the Manager expressly for use therein;
provided, however, that the foregoing indemnity with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such Losses purchased Offered Securities, or any person
controlling such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments thereof or
supplements thereto) was not sent or given by or on behalf of such Underwriter
to such person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the Offered Securities to such person, and
if the Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such Losses; provided, further, that the foregoing indemnity with
respect to the Prospectus shall not inure to the benefit of any Underwriter, or
to the benefit of any person who controls such Underwriter, in respect of any
Losses asserted by a person who purchased Offered Securities from such
Underwriter and arising out of or based upon an untrue statement or omission or
alleged untrue statement or omission in the Prospectus, if such untrue statement
or omission or alleged untrue statement or
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omission is corrected in an amendment or supplement to the Prospectus and if,
having previously been furnished by or on behalf of the Company with copies of
the Prospectus as so amended or supplemented, such Underwriter thereafter fails
to deliver or cause to be delivered such Prospectus as amended or supplemented
prior to or concurrently with the sale of Offered Securities to the person
asserting such Losses.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the Company
to such Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter through the
Manager expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) of this Section
7, such person (the "indemnified party") shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing
and the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the indemnifying party
and the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the reasonable fees and expenses of more
than one separate firm (in addition to any local counsel) for all such
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indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by the Manager, in
the case of parties indemnified pursuant to paragraph (a) above, and by the
Company, in the case of parties indemnified pursuant to paragraph (b) above. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any Loss by reason of such
settlement or judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in
paragraph (a) or (b) of this Section 7 is unavailable to an indemnified party or
insufficient in respect of any Losses referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such Losses (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 Offered
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 of the Underwriters on the other hand
in connection with the statements or omissions that resulted in such Losses, 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 hand
in connection with the offering of the Offered Securities shall be deemed to be
in the same respective proportions as the net proceeds from the offering of such
Offered Securities (before deducting expenses) received by the Company and the
total underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover of the Prospectus Supplement,
bear to the aggregate public offering price of the Offered Securities. The
relative fault of the Company on the one hand and the Underwriters on the other
hand shall be determined by reference
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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 Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the respective principal amounts of Offered Securities they have purchased
hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not
be just or 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 paragraph (d) of this Section 7. The
amount paid or payable by an indemnified party as a result of the Losses
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Offered 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 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.
(f) The indemnity and contribution provisions contained in
this Section 7 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement other than by way of
breach by the Underwriters, (ii) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter or the Company, its
officers or directors or any person controlling the Company and (iii) acceptance
of and payment for any of the Offered Securities.
14
15
8. TERMINATION. This Agreement shall be subject to termination
by notice given by the Manager to the Company, if (a) after the execution and
delivery of the Underwriting Agreement and prior to the Closing Date (i) trading
generally shall have been suspended or materially limited on or by, as the case
may be, any of the New York Stock Exchange or the National Association of
Securities Dealers, Inc., (ii) trading of any securities of the Company shall
have been suspended on the New York Stock Exchange or in 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 that, in the reasonable
judgment of the Manager, is material and adverse and (b) in the case of any of
the events specified in clauses (a)(i) through (iv), such event, singly or
together with any other such event, makes it, in the reasonable judgment of the
Manager, impracticable to market the Offered Securities on the terms and in the
manner contemplated in the Prospectus.
9. DEFAULTING UNDERWRITERS. If, on the Closing Date, any one
or more of the Underwriters shall fail or refuse to purchase Underwriters'
Securities that it has or they have agreed to purchase hereunder on such date,
and the aggregate amount of Underwriters' Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate amount of the Underwriters' Securities to be
purchased on such date, the other Underwriters shall be obligated severally in
the proportions that the amount of Underwriters' Securities set forth opposite
their respective names in the Underwriting Agreement bears to the aggregate
amount of Underwriters' Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Manager may
specify, to purchase the Underwriters' Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the amount of Underwriters' Securities
that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 9 by an amount in excess of one-ninth of such
amount of Underwriters' Securities without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail
or refuse to purchase Underwriters' Securities and the aggregate amount of
Underwriters' Securities with respect to which such default occurs is more than
one-tenth of the aggregate amount of Underwriters' Securities to be purchased on
such date, and
15
16
arrangements satisfactory to the Manager and the Company for the purchase of
such Underwriters' Securities are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either the Manager
or the Company shall have the right to postpone the Closing Date, but in no
event for longer than seven days, in order that the required changes, if any, in
the Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company to
comply in any material respect with the terms or to fulfill in any material
respect any of the conditions of this Agreement, or if for any reason the
Company shall be unable to perform its obligations under this Agreement, the
Company will reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the reasonable fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder.
10. COUNTERPARTS. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
11. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
12. HEADINGS. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
16
17
UNDERWRITING AGREEMENT
___________, 199_
Hubbell Incorporated
584 Derby Milford Road
Orange, Connecticut 06477-4024
Dear Sirs and Mesdames:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or underwriters
being herein called the "Underwriters"), and we understand that Hubbell
Incorporated, a Connecticut corporation (the "Company"), proposes to issue and
sell [Currency and Principal Amount] aggregate initial offering price of [Full
title of Debt Securities] (the "Debt Securities"). (The Debt Securities are also
referred to herein as the "Offered Securities.") The Debt Securities will be
issued pursuant to the provisions of an Indenture dated as of _________, 1995
(the "Indenture") between the Company and Chemical Bank, as Trustee (the
"Trustee").
Subject to the terms and conditions set forth or incorporated
by reference herein, the Company hereby agrees to sell to the several
Underwriters, and each Underwriter agrees, severally and not jointly, to
purchase from the Company the respective principal amounts of Debt Securities
set forth below opposite their names at a purchase price of ____% of the
principal amount of Debt Securities [, plus accrued interest, if any, from [Date
of Offered Securities] to the date of payment and delivery]:
Principal Amount of
Name Debt Securities
---- -----------------------
[Insert syndicate list]
18
Total . . . . . .
The principal amount of Debt Securities to be purchased by the
several Underwriters shall be reduced by the aggregate principal amount of Debt
Securities sold pursuant to delayed delivery contracts.
The Underwriters will pay for the Offered Securities (less any
Offered Securities sold pursuant to delayed delivery contracts) upon delivery
thereof at [office] at ______ a.m. (New York time) on ___________, 199_, or at
such other time, not later than 5:00 p.m. (New York time) on __________, 199_,
as shall be designated by the Manager. The time and date of such payment and
delivery are hereinafter referred to as the Closing Date.
The Offered Securities shall have the terms set forth in the
Prospectus dated August __, 1995, and the Prospectus Supplement dated
____________, 199_, including the following:
Terms of Debt Securities
Maturity Date:
Interest Rate:
Redemption Provisions:
Interest Payment Dates: ____________ __ and
____________ __ commencing
____________ __,____
[(Interest accrues from
____________ __,____)]
Form and Denomination:
[Other Terms:]
The commission to be paid to the Underwriters in respect of
the Offered Securities purchased pursuant to delayed delivery contracts arranged
by the Underwriters shall be ___% of the principal amount of the Debt Securities
so purchased.
All provisions contained in the document entitled Hubbell Incorporated
Underwriting Agreement Standard Provisions (Debt Securities) dated August __,
1995, a copy of which is attached
2
19
hereto, are herein incorporated by reference in their entirety and shall be
deemed to be a part of this Agreement to the same extent as if such provisions
had been set forth in full herein, except that (i) if any term defined in such
document is otherwise defined herein, the definition set forth herein shall
control, (ii) any references in such document to a type of security that is not
an Offered Security shall not be deemed to be a part of this Agreement, (iii)
the term "Manager" as used therein shall, for purposes of this Agreement, mean
________________, ________________ and __________ whose authority hereunder may
be exercised by them jointly or by ________________ and (iv) all references in
such document to a type of agreement that has not been entered into in
connection with the transactions contemplated hereby shall not be deemed to be a
part of this Agreement.
3
20
Please confirm your agreement by having an authorized officer
sign a copy of this Agreement in the space set forth below. This Agreement may
be signed in any number of counterparts with the same effect as if the
signatures thereto and hereto were upon the same instrument.
Very truly yours,
[Name of Lead Manager(s)]
Acting severally on behalf of themselves
and the several Underwriters named herein
By:
By: _______________________________
Name:
Title:
Accepted:
HUBBELL INCORPORATED
By: _________________________
Name:
Title:
4
21
Schedule I
DELAYED DELIVERY CONTRACT
________, 199_
Dear Sirs and Mesdames:
The undersigned hereby agrees to purchase from Hubbell
Incorporated, a Connecticut corporation (the "Company"), and the Company agrees
to sell to the undersigned the Company's securities described in Schedule A
annexed hereto (the "Securities"), offered by the Company's Prospectus dated
August __, 1995 and Prospectus Supplement dated ________________, 19__, receipt
of copies of which are hereby acknowledged, at a purchase price stated in
Schedule A and on the further terms and conditions set forth in this Agreement.
The undersigned does not contemplate selling Securities prior to making payment
therefor.
The undersigned will purchase from the Company Securities in
the principal amount on the delivery dates set forth in Schedule A. Each such
date on which Securities are to be purchased hereunder is hereinafter referred
to as a "Delivery Date."
Payment for the Securities which the undersigned has agreed to
purchase on each Delivery Date shall be made to the Company or its order by
certified or official bank check in New York Clearing House funds at the office
of ______________________________, New York, N.Y., at 10:00 A.M. (New York time)
on the Delivery Date, upon delivery to the undersigned of the Securities to be
purchased by the undersigned on the Delivery Date, in such denominations and
registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five full
business days prior to the Delivery Date.
1
22
The obligation of the undersigned to take delivery of and make
payment for the Securities on the Delivery Date shall be subject to the
conditions that (1) the purchase of Securities to be made by the undersigned
shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which the undersigned is subject and (2) the Company shall have
sold, and delivery shall have taken place to the underwriters (the
"Underwriters") named in the Prospectus Supplement referred to above of, such
part of the Securities as is to be sold to them. Promptly after completion of
sale and delivery to the Underwriters, the Company will mail or deliver to the
undersigned as its address set forth below notice to such effect, accompanied by
a copy of the opinion of counsel for the Company delivered to the Underwriters
in connection therewith.
Failure to take delivery of and make payment for Securities by
any purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this agreement.
This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors, but will not be
assignable by either party hereto without the written consent of the other.
If this Agreement is acceptable to the Company, it is
requested that the Company sign the form of acceptance below and mail or deliver
one of the counterparts hereof to the undersigned at its address set forth
below. This will become a binding agreement, as of the date first above written,
between the Company and the undersigned when such counterpart is so mailed or
delivered.
2
23
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
Yours very truly,
________________________
(Purchaser)
By _____________________
________________________
(Title)
________________________
________________________
(Address)
Accepted:
HUBBELL INCORPORATED
By ________________________
3
24
PURCHASER --- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of
the Purchaser with whom details of delivery on the Delivery Date may be
discussed is as follows: (Please print.)
Telephone No.
Name (Including Area Code) Department
---- --------------------- ----------
________________ _______________ ________________
4
25
SCHEDULE A
Securities:
-----------
Principal Amounts to be Purchased:
----------------------------------
Purchase Price:
---------------
Delivery:
--------
1
EXHIBIT 4.1
-----------
CERTIFICATE AMENDING OR RESTATING CERTIFICATE OF INCORPORATION
61-38 Rev. 9/90
Stock Corporation
STATE OF CONNECTICUT
SECRETARY OF THE STATE
1. Name of Corporation (Please enter name within lines)
HUBBELL INCORPORATED
2. The Certificate of Incorporation is: (Check one)
/X/ A. Amended only, pursuant to Conn. Gen. Stat.
Section 33 - 360.
/ / B. Amended only, to cancel authorized shares (state
number of shares to be cancelled, the class, the
series, if any, and the par value, P.A. 90-107.)
/ / C. Restated only, pursuant to Conn. Gen.
Stat. Section 33 - 362(a).
/ / D. Amended and restated, pursuant to Conn. Gen.
Stat. Section 33 - 362(c).
/ / E. Restated and superseded pursuant to Conn. Gen.
Stat. Section 33 - 362(d).
Set forth here the resolution of amendment and/or restatement. Use an
8 1/2 X 11 attached sheet if more space is needed. Conn. Gen. Stat.
Section 1 - 9.
SEE EXHIBIT I ATTACHED HERETO AND MADE A PART HEREOF.
(If 2A or 2B is checked, go to 5 & 6 to complete this certificate. If
2C or 2D is checked, complete 3A or 3B. If 2E is checked, complete 4.)
3. (Check one)
/ / A. This certificate purports merely to restate but not
to change the provisions of the original Certificate
of Incorporation as supplemented and amended to date,
and there is no discrepancy between the provisions of
the original Certificate of Incorporation as
supplemented and amended to date, and the provisions
of this Restated Certificate of Incorporation. (If 3A
is checked, go to 5 & 6 to complete this
certificate.)
/ / B. This Restated Certificate of Incorporation shall give
effect to the amendment(s) and purports to restate
all those provisions now in effect not being amended
by such new amendment(s). (If 3B is checked, check 4,
if true, and go to 5 & 6 to complete this
Certificate.)
4. (Check, if true)
/ / This restated Certificate of Incorporation was adopted by the
greatest vote which would have been required to amend any
provision of the Certificate of Incorporation as in effect
before such vote and supersedes such Certificate of
Incorporation.
2
5. The manner of adopting the resolution was as follows: (Check one A, or
B, or C)
/X/ A. By the board of directors and shareholders, pursuant
to Conn. Gen. Stat. Section 33 - 360. Vote of
Shareholders: (Check (i) or (ii), and check (iii) if
applicable.)
(i) / / No shares are required to be voted
as a class; the shareholder's vote
was as follows:
Vote Required for Adoption _____ Vote Favoring Adoption _____
(ii) /X/ There are shares of more than one
class entitled to vote as a class.
The designation of each class
required for adoption of the
resolution and the vote of each
class in favor of adoption were as
follows:
(Use an 8 1/2 x 11 attached sheet if
more space is needed. Conn. Gen.
Stat. Section 1 - 9.)
SEE EXHIBIT II ATTACKED HERETO AND MADE A PART HEREOF.
(iii) /X/ Check here if the corporation has
100 or more recordholders, as
defined in Conn. Gen.
Stat. Section 33-311a(a).
/ / B. By the board of directors acting alone, pursuant to
Conn. Gen. Stat. Section 33-360(b)(2) or 33-362(a).
The number of affirmative votes required to adopt
such resolution is: ________________________
The number of directors' votes in favor of the
resolution was: ____________________________
We hereby declare, under the penalties of false statement, that the statements
made in the foregoing certificate are true:
(Print or Type) Signature (Print or Type) Signature
Name of V. Pres. Name of Sec.
Harry B.Rowell,Jr. /s/HARRY B.ROWELL,JR. Richard W. Davies /s/RICHARD W. DAVIES
/ / C. The corporation does not have any shareholders. The
resolution was adopted by vote of at least two-thirds
of the incorporators before the organization meeting
of the corporation, and approved in writing by all
subscribers for shares of the corporation. If there
are no subscribers, state NONE below.
We (at least two-thirds of the incorporators) hereby declare, under the
penalties of false statement, that the statements made in the foregoing
certificate are true.
Signed Incorporator Signed Incorporator Signed Incorporator
Signed Subscriber Signed Subscriber Signed Subscriber
(Use an 8 1/2 X 11 attached sheet if more space is needed. Conn. Gen. Stat.
Section 1-9)
6. Dated at Orange, Connecticut this tenth day of May, 1991
Rec, CC, GS: (Type or Print)
Richard W. Davies
Hubbell Incorporated
P. O. Box 549
Orange, CT 06477-4024
3
ATTACHMENT TO STATE OF CONNECTICUT FORM 61-38 REV. 9/90
CERTIFICATE AMENDING OR RESTATING CERTIFICATE OF INCORPORATION
HUBBELL INCORPORATED
EXHIBIT 1
RESOLVED, that Article Fourth, Paragraph A. of the Restated Certificate of
Incorporation be amended to read in its entirety as follows:
"Fourth A. The total number of shares of the capital stock of
this Corporation hereby authorized is 206,000,000
divided into 6,000,000 shares of Preferred Stock
without par value, 50,000,000 shares of Class A
Common Stock of the par value of $.01 each, and
150,000,000 shares of Class B Common Stock of the par
value of $.01 each."
EXHIBIT 2
A. The proposal to amend the Company's Restated Certificate of
Incorporation to increase the number of authorized shares of the Class
A Common Stock of the Company to 50,000,000 shares has been approved
with 113,630,930 affirmative votes, being the affirmative votes of the
holders of a majority of the voting power of all outstanding eligible
shares all voting as a single class with 6,262,405 negative votes; and
98,593,641 affirmative votes of the Class A Common Stock voting
separately as a class (representing a majority of the Class A Common
eligible votes) with 4,036,838 negative votes.
B. The proposal to amend the Company's Restated Certificate of
Incorporation to increase the number of authorized shares of the Class
B Common Stock of the Company to 150,000,000 shares has been approved
with 115,739,437 affirmative votes, being the affirmative votes of the
holders of a majority of the voting power of all outstanding eligible
shares all voting as a single class with 5,739,752 negative votes; and
15,264,475 affirmative votes of the Class B Common Stock voting
separately as a class (representing a majority of the Class B Common
eligible votes) with 2,346,809 negative votes.
-------------------
As of the March 15, 1991 record date for voting at the May 6, 1991 Annual
Meeting of Shareholders, the total number of shares eligible to vote comprised
of 29,587,367 outstanding shares with a combined total voting power of
140,979,997 votes; the Class A Common Stock comprised of 5,862,770 outstanding
shares with a voting power (20 votes per share) of 117,255,400 votes; and the
Class B Common Stock comprised of 23,724,597 outstanding shares with a voting
power (1 vote per share) of 23,724,597 votes.
4
CERTIFICATE AMENDING OR RESTATING CERTIFICATE OF INCORPORATION
61-38 Rev. 4/89
Stock Corporation
STATE OF CONNECTICUT
SECRETARY OF THE STATE
30 TRINITY STREET
HARTFORD, CT 06106
1. Name of Corporation
Hubbell Incorporated
2. The Certificate of Incorporation is: (Check One)
/X/ A. Amended only, pursuant to Conn. Gen.
Stat. Section 33 - 360.
/ / B. Amended and restated, pursuant to Conn. Gen.
Stat. Section 33 - 362(c).
/ / C. Restated only, pursuant to Conn. Gen.
Stat. Section 33 - 362(a).
(Set forth here the resolution of amendment and/or
restatement. Use a 8 1/2 X 11 attached sheet if more
space is needed).
See Exhibit I attached hereto
/ / D. Restated and superseded pursuant to Conn. Gen.
Stat. Section 33 - 362(d).
(Set forth here the resolution of amendment and/or
restatement. Use a 8 1/2 X 11 attached sheet if more
space is needed).
(If 2A is checked, go to 5 to complete this certificate. If 2B or 2C
is checked, complete 3A or 3B. If 2D is checked, complete 4)
3. (Check one)
/ / A. This certificate purports merely to restate but not
to change the provisions of the original Certificate of
Incorporation as supplemented and amended to date, and there
is no discrepancy between the provisions of the original
Certificate of Incorporation as supplemented and amended to
date, and the provisions of this Restated Certificate of
Incorporation. (If 3A is checked, go to 5 to complete this
certificate).
/ / B. This Restated Certificate of Incorporation shall give
effect to the amendment(s) and purports to restate all those
provisions now in effect not being amended by such new
amendment(s). (If 3B is checked, check 4, if true, and go to 5
to complete this Certificate).
4. (Check, if true)
/ / This restated Certificate of Incorporation was adopted by the
greatest vote which would have been required to amend any
provision of the Certificate of Incorporation as in effect
before such vote and supersedes such Certificate of
Incorporation.
5
5. The manner of adopting the resolution was as follows: (Check one A, or
B, or C).
/X/ A. By the board of directors and shareholders, pursuant
to Conn. Gen. Stat. Section 33 - 360. Vote of
Shareholders: (Check (i) or (ii), and check (iii) if
applicable).
(i) / / No shares are required to be voted
as a class; the shareholder's vote
was as follows:
Vote Required for Adoption ________ Vote Favoring Adoption ________
(ii) /X/ There are shares of more than one
class entitled to vote as a class.
The designation of each class
required for adoption of the
resolution and the vote of each
class in favor of adoption were as
follows:
(Use an 8 1/2 x 11 attached sheet if
more space is needed).
See Exhibit II attached hereto
(iii) /X/ Check here if the corporation has
100 or more recordholders, as
defined in Conn. Gen.
Stat. Section 33 - 311 a(a).
/ / B. By the board of directors acting alone, pursuant to
Conn. Gen. Stat. Section 33 - 360(b)(2).
The number of affirmative votes required to adopt
such resolution is: ________________________________
The number of directors' votes in favor of the
resolution was: ____________________________________
We hereby declare, under the penalties of false statement, that the statements
made in the foregoing certificate are true:
(Print or Type) Signature (Print or Type) Signature
Name of V. Pres. Name of Sec.
Robert A. McRoberts /s/ ROBERT A. MCROBERTS Richard W. Davies /s/ RICHARD W. DAVIES
/ / C. The corporation does not have any shareholders. The
resolution was adopted by vote of at least two-thirds
of the incorporators before the organization meeting
of the corporation, and approved in writing by all
subscribers (if any) for shares of the corporation.
We (at least two-thirds of the incorporators) hereby declare, under the
penalties of false statement, that the statements made in the foregoing
certificate are true.
Signed Signed Signed
Signed Signed Signed
Dated at Orange, Connecticut this ninth day of May, 1990.
APPROVED by all subscribers, if none, so state:_________
(Use an 8 1/2 X 11 attached sheet if more space is needed)
Rec, CC, GS: (Type or Print)
Hubbell Incorporated
P. O. Box 549
Orange, CT 06477
Please provide filer's name and complete
address for mailing receipt
6
ATTACHMENT TO STATE OF CONNECTICUT FORM 61-38 REV. 4/89
CERTIFICATE AMENDING OR RESTATING CERTIFICATE OF INCORPORATION
HUBBELL INCORPORATED
EXHIBIT 1
A. RESOLVED, that the Restated Certificate of Incorporation of the
Company be amended by the adoption of a new Paragraph Seventh thereto
as follows:
"SEVENTH. The personal liability of any Director to the corporation
or its shareholders for monetary damages for breach of duty as a
Director is hereby limited to the amount of the compensation received
by the Director for serving the corporation during the year of the
violation If such breach did not (a) involve a knowing and culpable
violation of law by the Director, (b) enable the Director or an
associate, as defined in subdivision (3) of Section 33-374d of the
Connecticut General Statutes, to receive an improper personal economic
gain, (c) show a lack of good faith and a conscious disregard for the
duty of the Director to the corporation under circumstances in which
the Director was aware that his or her conduct or omission created an
unjustifiable risk of serious injury to the corporation, (d)
constitute a sustained and unexcused pattern of inattention that
amounted to an abdication of the Director's duty to the corporation,
or (e) create liability under Section 33-321 of the Connecticut
General Statutes. This provision shall not limit or preclude the
liability of a Director for any act or omission occurring prior to the
date this provision becomes effective by the filing of a certificate
amending the Restated Certificate of Incorporation of the corporation
with the Secretary of the State of the State of Connecticut. Any
lawful repeal or modification of this provision by the shareholders
and the Board of Directors of the corporation shall not adversely
affect any right or protection of a Director existing at or prior to
the time of such repeal or modification."
B. RESOLVED, that Article Fourth, Paragraph A, of the Restated
Certificate of Incorporation be amended to read in its entirety as
follows:
"Fourth A. The total number of shares of the capital stock of this
Corporation hereby authorized is 93,000,000 divided into 6,000,000
shares of Preferred Stock without par value, 29,000,000 shares of
Class A Common Stock of the par value of $0.01 each, and 58,000,000
shares of Class B Common Stock of the par value of $0.01 each."
C. RESOLVED, that Paragraph Fourth of the Restated Certificate of
Incorporation of the Company, as restated, amended, and in effect
immediately prior to the effectiveness of this Certificate of
Amendment is further amended to add a new subparagraph C.1 to read as
follows:
"C.1. The corporation may, to the extent of its unreserved and
unrestricted capital surplus, (a) make distributions of cash or
property to its shareholders with respect to its outstanding shares or
any thereof, and (b) make purchases and permit conversions of its own
shares for cash, securities or other property."
7
ATTACHMENT TO STATE OF CONNECTICUT FORM 61-38 REV. 4/89
CERTIFICATE AMENDING OR RESTATING CERTIFICATE OF INCORPORATION
HUBBELL INCORPORATED
EXHIBIT 2
A. The proposal to amend the Company's Restated Certificate of Incorporation
to limit the personal liability of the corporation's Directors for monetary
damages to the corporation and its shareholders for breach of their duty as
Directors has been approved with 114,783,628 affirmative votes, being the
affirmative votes of the holders of a majority of the voting power of all
outstanding eligible shares all voting as a single class with 3,402,919
negative votes.
B. The proposal to amend the Company's Restated Certificate of Incorporation
to reduce the par value of the corporation's Class A Common Stock and Class B
Common Stock from $5.00 per share to $0.01 per share has been approved with
115,652,715 affirmative votes, being the affirmative votes of the holders of a
majority of the voting power of all outstanding eligible shares all voting as a
single class with 2,179,634 negative votes; 100,394,895 affirmative votes of
the Class A Common Stock voting separately as a class (representing a majority
of the voting power of all outstanding eligible Class A Common shares) and
1,698,069 negative votes; and 15,257,820 affirmative votes of the Class B
Common Stock voting separately as a class (representing a majority of the
voting power of all outstanding eligible Class B Common shares) with 481,565
negative votes.
C. The proposal to amend the Company's Restated Certificate of Incorporation
to permit the corporation to make distributions in cash or property to the
corporation's shareholders with respect to the corporation's outstanding
shares, and to repurchase and make conversions of any of the corporation's
outstanding shares, to the extent of the corporation's capital surplus, has
been approved with 110,820,790 affirmative votes, being the affirmative votes
of the holders of a majority of the voting power of all outstanding eligible
shares all voting as a single class with 1,827,046 negative votes.
-----------------
As of the March 16, 1990 record date for voting at the May 7, 1990 Annual
Meeting of Shareholders, the total number of shares eligible to vote comprised
of 28,075,124 outstanding shares with a combined total voting power of
141,534,308 votes; the Class A Common Stock comprised of 5,971,536 outstanding
shares with a voting power (20 votes per share) of 119,430,720 votes; and the
Class B Common Stock comprised of 22,103,588 outstanding shares with a voting
power (1 per share) of 22,103,588 votes.
8
CERTIFICATE
AMENDING OR RESTATING CERTIFICATE / / BOARD OF /x/ BOARD OF DIRECTORS / / BOARD OF DIRECTORS
OF INCORPORATION BY ACTION OF / / INCORPORATORS DIRECTORS AND SHAREHOLDERS AND MEMBERS
61-38 (Stock Corporation) (Nonstock Corporation)
STATE OF CONNECTICUT
SECRETARY OF THE STATE
1. NAME OF CORPORATION DATE
HUBBELL INCORPORATED May 18, 1987
2. THE CERTIFICATE OF INCORPORATION IS /x/ A. AMENDED ONLY / / B. AMENDED / / C. RESTATED ONLY BY THE FOLLOWING RESOLUTION
AND RESTATED
See Exhibit 1 incorporated herein by reference.
3. (Omit if 2 A is checked.)
(a) THE ABOVE RESOLUTION MERELY RESTATES AND DOES NOT CHANGE THE
PROVISIONS OF THE ORIGINAL CERTIFICATE OF INCORPORATION AS
SUPPLEMENTED AND AMENDED TO DATE, EXCEPT AS FOLLOWS: (Indicate
amendments made, if any; if none, so indicate.)
(B) OTHER THAN AS INDICATED IN PAR. 3(A), THERE IS NO DISCREPANCY BETWEEN
THE PROVISIONS OF THE ORIGINAL CERTIFICATE OF INCORPORATION AS
SUPPLEMENTED TO DATE, AND THE PROVISIONS OF THIS CERTIFICATE
RESTATING THE CERTIFICATE OF INCORPORATION.
BY ACTION OF INCORPORATORS
/ / 4. THE ABOVE RESOLUTION WAS ADOPTED BY VOTE OF AT LEAST
TWO-THIRDS OF THE INCORPORATORS BEFORE THE ORGANIZATION
MEETING OF THE CORPORATION, AND APPROVED IN WRITING BY ALL
SUBSCRIBERS (if any) FOR SHARES OF THE CORPORATION, (or if
nonstock corporation, by all applicants for membership
entitled to vote, if any.)
WE (AT LEAST TWO-THIRDS OF THE INCORPORATORS) HEREBY DECLARE, UNDER
THE PENALTIES OF FALSE STATEMENT THAT THE STATEMENTS MADE IN THE
FOREGOING CERTIFICATE ARE TRUE.
APPROVED
(All subscribers, or, if nonstock corporation, all applicants for
membership entitled to vote, if none, so indicate.)
9
(Continued)
==================================================================================================================================
/ / 4. (Omit if 2.C is checked.) The above resolution was adopted by the board of directors acting alone,
/ / there being no shareholders or subscribers. / / the board of directors being so authorized pursuant to Section
33-341, Conn. G.S. as amended
/ / the corporation being a nonstock corporation and having no members
and no applicants for membership entitled to vote on such resolution.
----------------------------------------------------------------------------------------------------------------------------------
5. The number of affirmative votes 6. The number of directors' votes
required to adopt such resolution is: in favor of the resolution was:
----------------------------------------------------------------------------------------------------------------------------------
WE HEREBY DECLARE, UNDER THE PENALTIES OF FALSE STATEMENT THAT THE STATEMENTS MADE IN THE FOREGOING CERTIFICATE ARE TRUE.
----------------------------------------------------------------------------------------------------------------------------------
NAME OF PRESIDENT OR VICE PRESIDENT (Print or Type) NAME OF SECRETARY OR ASSISTANT SECRETARY (Print or Type)
----------------------------------------------------------------------------------------------------------------------------------
SIGNED (President or Vice President) SIGNED (Secretary or Assistant Secretary)
----------------------------------------------------------------------------------------------------------------------------------
/X/ 4. THE ABOVE RESOLUTION WAS ADOPTED BY THE BOARD OF DIRECTORS AND BY SHAREHOLDERS.
5. Vote of Shareholders:
(a) (Use if no shares are required to be voted as a class)
----------------------------------------------------------------------------------------------------------------------------------
NUMBER OF SHARES ENTITLED TO VOTE TOTAL VOTING POWER VOTING REQUIRED FOR ADOPTION VOTE FAVORING ADOPTION
----------------------------------------------------------------------------------------------------------------------------------
(b) (If the shares of any class are entitled to vote as a class, indicate the designation and number of outstanding shares
of each such class, the voting power thereof, and the vote of each such class for the amendment resolution.)
See Exhibit 2 incorporated herein by reference.
WE HEREBY DECLARE, UNDER THE PENALTIES OF FALSE STATEMENT THAT THE STATEMENTS MADE IN THE FOREGOING CERTIFICATE ARE TRUE.
----------------------------------------------------------------------------------------------------------------------------------
NAME OF PRESIDENT OR VICE PRESIDENT (Print or type) NAME OF SECRETARY OR ASSISTANT SECRETARY (Print or Type)
FRED R. DUSTO RICHARD W. DAVIES
----------------------------------------------------------------------------------------------------------------------------------
SIGNED (President or Vice President) SIGNED (Secretary or Assistant Secretary)
/s/ FRED R. DUSTO /s/ RICHARD W. DAVIES
----------------------------------------------------------------------------------------------------------------------------------
/ / 4. THE ABOVE RESOLUTION WAS ADOPTED BY THE BOARD OF DIRECTORS AND BY MEMBERS.
5. VOTE OF MEMBERS:
(a) (Use if no MEMBERS are required to be voted as a class)
----------------------------------------------------------------------------------------------------------------------------------
NUMBER OF MEMBERS VOTING TOTAL VOTING POWER VOTE REQUIRED FOR ADOPTION VOTE FAVORING ADOPTION
----------------------------------------------------------------------------------------------------------------------------------
(b) (If the members of any class are entitled to vote as a class, indicate the designation and number of members of
each such class, the voting power thereof, and the vote of each such class for the amendment resolution.)
WE HEREBY DECLARE, UNDER THE PENALTIES OF FALSE STATEMENT THAT THE STATEMENTS MADE IN THE FOREGOING CERTIFICATE ARE TRUE.
----------------------------------------------------------------------------------------------------------------------------------
NAME OF PRESIDENT (Print or type) NAME OF SECRETARY (Print or Type)
----------------------------------------------------------------------------------------------------------------------------------
SIGNED (President or Vice President) SIGNED (Secretary or Assistant Secretary)
==================================================================================================================================
FILING FEE Exp. 20 CERTIFICATION FEE Exp. 40 TOTAL FEE
FF 30
$ FIX 102,000,00 $ 25.00 $ 102,115
-----------------------------------------------------------------------------------------------
SIGNED (For Secretary of the State)
Rec & 2CC: ALLEN BOYORSKY
-----------------------------------------------------------------------------------------------
CERTIFIED COPY SENT ON (Date) INITIALS
Harvey Hubbell Inc.
-----------------------------------------------------------------------------------------------
TO
Orange CT. 06477
-----------------------------------------------------------------------------------------------
CARD LIST PROOF
10
HUBBELL INCORPORATED
Certificate Amending or Restating Certificate of Incorporation
EXHIBIT 1
RESOLVED, that Article Fourth, Paragraph A, of the Restated
Certificate of Incorporation be amended to read in its entirety as follows:
"Fourth A. The total number of shares of the capital stock of
this Corporation hereby authorized is 93,000,000
divided into 6,000,000 shares of Preferred Stock
without par value, 29,000,000 shares of Class A
Common Stock of the par value of $5.00 each, and
58,000,000 shares of Class B Common Stock of the par
value of $5.00 each."
RESOLVED, that the last sentence of Article Fourth, Paragraph B, of
the Restated Certificate of Incorporation be amended to read in its entirety as
follows:
"In all other respects, whether as to dividends or
upon liquidation, dissolution or winding up of the
affairs of the corporation, or otherwise, the holders
of record of the Class A Common Stock and the holders
of record of the Class B Common Stock shall have
identical rights and privileges on the basis of the
number of shares held except that stock dividends may
be declared and paid on shares of Class A Common
Stock in whole or in part in shares of Class B Common
Stock."
0508c
11
HUBBELL INCORPORATED
Certificate Amending or Restating Certificate of Incorporation
EXHIBIT 2
A. The proposal to amend the Company's Restated Certificate of
Incorporation to increase the number of authorized shares of the Class
A Common Stock of the Company to 29,000,000 shares has been approved
with 108,510,548 affirmative votes, being the affirmative votes of the
holders of a majority of the voting power of all outstanding eligible
shares all voting as a single class with 4,635,401 negative votes; and
95,301,240 affirmative votes of the Class A Common Stock voting
separately as a class (representing a majority of the Class A Common
eligible votes) with 3,128,720 negative votes.
B. The proposal to amend the Company's Restated Certificate of
Incorporation to increase the number of authorized shares of the Class
B Common Stock of the Company to 58,000,000 shares has been approved
with 110,492,867 affirmative votes, being the affirmative votes of the
holders of a majority of the voting power of all outstanding eligible
shares all voting as a single class with 2,580,564 negative votes; and
13,689,529 affirmative votes of the Class B Common Stock voting
separately as a class (representing a majority of the Class B Common
eligible votes) with 886,596 negative votes.
C. The proposal to amend the Company's Restated Certificate of
Incorporation to permit the payment of stock dividends in shares of
Class B Common Stock to holders of shares of Class A Common Stock has
been approved with 101,127,711 affirmative votes, being the
affirmative votes of the holders of a majority of the voting power of
all outstanding eligible shares all voting as a single class with
4,799,610 negative votes; 88,373,900 affirmative votes of the Class A
Common Stock voting separately as a class (representing a majority of
the Class A Common eligible votes) and 3,796,400 negative votes; and
12,586,632 affirmative votes of the Class B Common Stock voting
separately as a class (representing a majority of the Class B Common
eligible votes) with 995,115 negative votes.
12
------------
As of the March 13, 1987, record date for voting at the May 4, 1987
Annual Meeting of Shareholders, the total number of shares eligible to
vote comprised of 25,831,753 outstanding shares with a combined total
voting power of 148,570,841 votes; the Class A Common Stock comprised
of 6,459,952 outstanding shares with a voting power (20 votes per
share) of 129,199,040 votes; the Class B Common Stock comprised of
19,133,849 outstanding shares with a voting power (1 vote per share)
of 19,133,849 votes, and the Series C $2.06 Cumulative Convertible
Preferred Stock comprised of 237,952 outstanding shares with a voting
power (1 vote per share) of 237,952 votes.
Hubbell Incorporated is a Connecticut Corporation having at least one
hundred shareholders.
0509c
13
CERTIFICATE
AMENDING OR RESTATING CERTIFICATE / / BOARD OF /x/ BOARD OF DIRECTORS / / BOARD OF DIRECTORS
OF INCORPORATION BY ACTION OF / / INCORPORATORS DIRECTORS AND SHAREHOLDERS AND MEMBERS
61-38 (Stock Corporation) (Nonstock Corporation)
STATE OF CONNECTICUT
SECRETARY OF THE STATE
1. NAME OF CORPORATION DATE
Harvey Hubbell, Incorporated May 9, 1986
2. THE CERTIFICATE OF INCORPORATION IS /x/ A. AMENDED ONLY / / B. AMENDED / / C. RESTATED ONLY BY THE FOLLOWING RESOLUTION
AND RESTATED
RESOLVED, that Paragraph FIRST of the Company's Restated Certificate
of Incorporation be amended to read in its entirety as follows:
"First. That the name of the corporation is Hubbell
Incorporated."
3. (Omit if 2A is checked.)
(a) THE ABOVE RESOLUTION MERELY RESTATES AND DOES NOT CHANGE THE
PROVISIONS OF THE ORIGINAL CERTIFICATE OF INCORPORATION AS
SUPPLEMENTED AND AMENDED TO DATE, EXCEPT AS FOLLOWS: (Indicate
amendments made, if any; if none, so indicate.)
(b) OTHER THAN AS INDICATED IN PAR. 3(A), THERE IS NO DISCREPANCY BETWEEN
THE PROVISIONS OF THE ORIGINAL CERTIFICATE OF INCORPORATION AS
SUPPLEMENTED TO DATE, AND THE PROVISIONS OF THIS CERTIFICATE RESTATING
THE CERTIFICATE OF INCORPORATION.
BY ACTION OF INCORPORATORS
/ / 4. THE ABOVE RESOLUTION WAS ADOPTED BY VOTE OF AT LEAST
TWO-THIRDS OF THE INCORPORATORS BEFORE THE ORGANIZATION
MEETING OF THE CORPORATION, AND APPROVED IN WRITING BY ALL
SUBSCRIBERS (if any) FOR SHARES OF THE CORPORATION, (or if
nonstock corporation, by all applicants for membership
entitled to vote, if any.)
WE (at least two-thirds of the incorporators) HEREBY DECLARE, UNDER
THE PENALTIES OF FALSE STATEMENT THAT THE STATEMENTS MADE IN THE
FOREGOING CERTIFICATE ARE TRUE.
APPROVED
(All subscribers, or, if nonstock corporation, all applicants for
membership entitled to vote, if none, so indicate.)
14
(Continued)
==================================================================================================================================
/ / 4. (Omit if 2.C is checked.) The above resolution was adopted by the board of directors acting alone,
/ / there being no shareholders or subscribers. / / the board of directors being so authorized pursuant to Section
33-341, Conn. G.S. as amended
/ / the corporation being a nonstock corporation and having no members
and no applicants for membership entitled to vote on such resolution.
----------------------------------------------------------------------------------------------------------------------------------
5. The number of affirmative votes 6. The number of directors' votes
required to adopt such resolution is: in favor of the resolution was:
----------------------------------------------------------------------------------------------------------------------------------
WE HEREBY DECLARE, UNDER THE PENALTIES OF FALSE STATEMENT THAT THE STATEMENTS MADE IN THE FOREGOING CERTIFICATE ARE TRUE.
----------------------------------------------------------------------------------------------------------------------------------
NAME OF PRESIDENT OR VICE PRESIDENT (Print or Type) NAME OF SECRETARY OR ASSISTANT SECRETARY (Print or Type)
----------------------------------------------------------------------------------------------------------------------------------
SIGNED (President or Vice President) SIGNED (Secretary or Assistant Secretary)
----------------------------------------------------------------------------------------------------------------------------------
/X/ 4. THE ABOVE RESOLUTION WAS ADOPTED BY THE BOARD OF DIRECTORS AND BY SHAREHOLDERS.
5. VOTE OF SHAREHOLDERS:
(a) (Use if no shares are required to be voted as a class)
----------------------------------------------------------------------------------------------------------------------------------
NUMBER OF SHARES ENTITLED TO VOTE TOTAL VOTING POWER VOTING REQUIRED FOR ADOPTION VOTE FAVORING ADOPTION
25,203,072 147,564,706 73,782,354 121,720,850
----------------------------------------------------------------------------------------------------------------------------------
(b) (If the shares of any class are entitled to vote as a class, indicate the designation and number of outstanding shares
of each such class, the voting power thereof, and the vote of each such class for the amendment resolution.)
WE HEREBY DECLARE, UNDER THE PENALTIES OF FALSE STATEMENT THAT THE STATEMENTS MADE IN THE FOREGOING CERTIFICATE ARE TRUE.
----------------------------------------------------------------------------------------------------------------------------------
NAME OF VICE PRESIDENT (Print or type) NAME OF SECRETARY (Print or Type)
George Jackson Ratcliffe, Jr. Richard W. Davies
----------------------------------------------------------------------------------------------------------------------------------
SIGNED (President or Vice President) SIGNED (Secretary or Assistant Secretary)
/s/ GEORGE JACKSON RATCLIFFE, JR. /s/ RICHARD W. DAVIES
----------------------------------------------------------------------------------------------------------------------------------
/ / 4. THE ABOVE RESOLUTION WAS ADOPTED BY THE BOARD OF DIRECTORS AND BY MEMBERS.
5. VOTE OF MEMBERS:
(a) (Use if no members are required to be voted as a class)
----------------------------------------------------------------------------------------------------------------------------------
NUMBER OF MEMBERS VOTING TOTAL VOTING POWER VOTE REQUIRED FOR ADOPTION VOTE FAVORING ADOPTION
----------------------------------------------------------------------------------------------------------------------------------
(b) (If the members of any class are entitled to vote as a class, indicate the designation and number of members of
each such class, the voting power thereof, and the vote of each such class for the amendment resolution.)
WE HEREBY DECLARE, UNDER THE PENALTIES OF FALSE STATEMENT THAT THE STATEMENTS MADE IN THE FOREGOING CERTIFICATE ARE TRUE.
----------------------------------------------------------------------------------------------------------------------------------
NAME OF PRESIDENT OR VICE PRESIDENT (Print or type) NAME OF SECRETARY OR ASSISTANT SECRETARY (Print or Type)
----------------------------------------------------------------------------------------------------------------------------------
SIGNED (President or Vice President) SIGNED (Secretary or Assistant Secretary)
==================================================================================================================================
FILING FEE CERTIFICATION FEE TOTAL FEE
(EX 20) (EX 200)
$ 30 $ 70 $ 320
-----------------------------------------------------------------------------------------------
SIGNED (For Secretary of the State)
Rec & 5g.s & 5CC
-----------------------------------------------------------------------------------------------
CERTIFIED COPY SENT ON (Date) INITIALS
-----------------------------------------------------------------------------------------------
TO
-----------------------------------------------------------------------------------------------
CARD LIST PROOF
15
CERTIFICATE
AMENDING OR RESTATING CERTIFICATE / / BOARD OF /x/ BOARD OF DIRECTORS / / BOARD OF DIRECTORS
OF INCORPORATION BY ACTION OF / / INCORPORATORS DIRECTORS AND SHAREHOLDERS AND MEMBERS
61-38 (Stock Corporation) (Nonstock Corporation)
STATE OF CONNECTICUT
SECRETARY OF THE STATE
1. NAME OF CORPORATION DATE
Harvey Hubbell, Incorporated June 19, 1985
2. THE CERTIFICATE OF INCORPORATION IS /X/ A. AMENDED ONLY / / B. AMENDED / / C. RESTATED ONLY BY THE FOLLOWING RESOLUTION
AND RESTATED
RESOLVED, that Article Fourth, Paragraph A, of the Restated
Certificate of Incorporation be amended to read in its entirety as
follows:
"Fourth A. The total number of shares of the capital stock of
this Corporation hereby authorized is 42,000,000
divided into 6,000,000 shares of Preferred Stock
without par value, 12,000,000 shares of Class A
Common Stock of the par value of $5.00 each, and
24,000,000 shares of Class B Common Stock of the par
value of $5.00 each."
3. (Omit if 2A is checked.)
(a) THE ABOVE RESOLUTION MERELY RESTATES AND DOES NOT CHANGE THE
PROVISIONS OF THE ORIGINAL CERTIFICATE OF INCORPORATION AS
SUPPLEMENTED AND AMENDED TO DATE, EXCEPT AS FOLLOWS: (Indicate
amendments made, if any; if none, so indicate.)
(b) OTHER THAN AS INDICATED IN PAR. 3(A), THERE IS NO DISCREPANCY BETWEEN
THE PROVISIONS OF THE ORIGINAL CERTIFICATE OF INCORPORATION AS
SUPPLEMENTED TO DATE, AND THE PROVISIONS OF THIS CERTIFICATE RESTATING
THE CERTIFICATE OF INCORPORATION.
BY ACTION OF INCORPORATORS
/ / 4. THE ABOVE RESOLUTION WAS ADOPTED BY VOTE OF AT LEAST
TWO-THIRDS OF THE INCORPORATORS BEFORE THE ORGANIZATION
MEETING OF THE CORPORATION, AND APPROVED IN WRITING BY ALL
SUBSCRIBERS (if any) FOR SHARES OF THE CORPORATION, (or if
nonstock corporation, by all applicants for membership
entitled to vote, if any.)
WE (at least two-thirds of the incorporators) HEREBY DECLARE, UNDER
THE PENALTIES OF FALSE STATEMENT THAT THE STATEMENTS MADE IN THE
FOREGOING CERTIFICATE ARE TRUE.
APPROVED
(All subscribers, or, if nonstock corporation, all applicants for
membership entitled to vote, if none, so indicate.)
SIGNED SIGNED SIGNED
(Over)
16
(Continued)
==================================================================================================================================
/ / 4. (Omit if 2.C is checked.) The above resolution was adopted by the board of directors acting alone,
/ / there being no shareholders or subscribers. / / the board of directors being so authorized pursuant to Section
33-341, Conn. G.S. as amended
/ / the corporation being a nonstock corporation and having no members
and no applicants for membership entitled to vote on such resolution.
----------------------------------------------------------------------------------------------------------------------------------
5. The number of affirmative votes 6. The number of directors' votes
required to adopt such resolution is: in favor of the resolution was:
----------------------------------------------------------------------------------------------------------------------------------
WE HEREBY DECLARE, UNDER THE PENALTIES OF FALSE STATEMENT THAT THE STATEMENTS MADE IN THE FOREGOING CERTIFICATE ARE TRUE.
----------------------------------------------------------------------------------------------------------------------------------
NAME OF PRESIDENT OR VICE PRESIDENT (Print or Type) NAME OF SECRETARY OR ASSISTANT SECRETARY (Print or Type)
----------------------------------------------------------------------------------------------------------------------------------
SIGNED (President or Vice President) SIGNED (Secretary or Assistant Secretary)
----------------------------------------------------------------------------------------------------------------------------------
/X/ 4. THE ABOVE RESOLUTION WAS ADOPTED BY THE BOARD OF DIRECTORS AND BY SHAREHOLDERS.
5. VOTE OF SHAREHOLDERS:
(a) (Use if no shares are required to be voted as a class)
----------------------------------------------------------------------------------------------------------------------------------
NUMBER OF SHARES ENTITLED TO VOTE TOTAL VOTING POWER VOTE REQUIRED FOR ADOPTION VOTE FAVORING ADOPTION
----------------------------------------------------------------------------------------------------------------------------------
(b) (If the shares of any class are entitled to vote as a class, indicate the designation and number of outstanding shares
of each such class, the voting power thereof, and the vote of each such class for the amendment resolution.)
See Exhibit 1 incorporated herein by reference.
WE HEREBY DECLARE, UNDER THE PENALTIES OF FALSE STATEMENT THAT THE STATEMENTS MADE IN THE FOREGOING CERTIFICATE ARE TRUE.
----------------------------------------------------------------------------------------------------------------------------------
NAME OF PRESIDENT (Print or type) NAME OF SECRETARY (Print or Type)
Frederick R. Dusto Richard W. Davies
----------------------------------------------------------------------------------------------------------------------------------
SIGNED (President or Vice President) SIGNED (Secretary or Assistant Secretary)
/s/ FREDERICK R. DUSTO /s/ RICHARD W. DAVIES
----------------------------------------------------------------------------------------------------------------------------------
/ / 4. THE ABOVE RESOLUTION WAS ADOPTED BY THE BOARD OF DIRECTORS AND BY MEMBERS.
5. VOTE OF MEMBERS:
(a) (Use if no members are required to vote as a class)
----------------------------------------------------------------------------------------------------------------------------------
NUMBER OF MEMBERS VOTING TOTAL VOTING POWER VOTE REQUIRED FOR ADOPTION VOTE FAVORING ADOPTION
----------------------------------------------------------------------------------------------------------------------------------
(b) (If the members of any class are entitled to vote as a class, indicate the designation and number of members of
each such class, the voting power thereof, and the vote of each such class for the amendment resolution.)
WE HEREBY DECLARE, UNDER THE PENALTIES OF FALSE STATEMENT THAT THE STATEMENTS MADE IN THE FOREGOING CERTIFICATE ARE TRUE.
----------------------------------------------------------------------------------------------------------------------------------
NAME OF PRESIDENT OR VICE PRESIDENT (Print or type) NAME OF SECRETARY OR ASSISTANT SECRETARY (Print or Type)
----------------------------------------------------------------------------------------------------------------------------------
SIGNED (President or Vice President) SIGNED (Secretary or Assistant Secretary)
==================================================================================================================================
FILING FEE CERTIFICATION FEE TOTAL FEE
$ $ $
-----------------------------------------------------------------------------------------------
SIGNED (For Secretary of the State)
-----------------------------------------------------------------------------------------------
CERTIFIED COPY SENT ON (Date) INITIALS
-----------------------------------------------------------------------------------------------
TO
-----------------------------------------------------------------------------------------------
CARD LIST PROOF
17
Harvey Hubbell, Incorporated
Certificate Amending or Restating Certificate of Incorporation
EXHIBIT 1
A. The proposal to amend the Company's Restated Certificate of
Incorporation to increase the number of authorized shares of the Class
A Common Stock of the Company to 12,000,000 shares has been approved
with 54,577,942 affirmative votes of the Class A Common Stock voting
separately as a class (representing a majority of the Class A Common
eligible votes) with 724,674 negative votes. As of the record date
for voting on the proposal, the Class A Common Stock comprised of
3,232,918 outstanding shares with a voting power of 64,658,360 votes.
B. The proposal to amend the Company's Restated Certificate of
Incorporation to increase the number of authorized shares of the Class
B Common Stock of the Company to 24,000,000 shares has been approved
with 5,444,022 affirmative votes of the Class B Common Stock voting
separately as a class (representing a majority of the Class B common
eligible votes) with 86,710 negative votes. As of the record date for
voting on the proposal, the Class B Common Stock comprised of
8,617,988 outstanding shares with a voting power of 8,617,988 votes.
Harvey Hubbell, Incorporated is a Connecticut corporation having at
least one hundred recordholders.
18
CERTIFICATE AMENDING CERTIFICATE OF INCORPORATION
of
HARVEY HUBBELL, INCORPORATED
by
Action of the Board of Directors Acting Alone
and
Action of the Board of Directors and the Shareholders
----------------
HARVEY HUBBELL, INCORPORATED, a corporation (the "Corporation")
organized and existing under and by virtue of the laws of the State of
Connecticut, does hereby certify as follows:
I. The name of the Corporation is HARVEY HUBBELL, INCORPORATED.
II. (a) The Corporation's certificate of incorporation, as
restated, amended, and in effect (the "Certificate of Incorporation")
immediately prior to the effectiveness of this Certificate is further amended
by the resolution attached hereto, designated Exhibit A, and made an integral
part hereof.
(b) The amendatory resolution referred to in Paragraph
II(a) hereof and set forth in Exhibit A hereto was adopted by the Board of
Directors of the Corporation acting alone pursuant to Article FOURTH D of the
Certificate of Incorporation and Section 33-341 of the Connecticut Stock
Corporation Act, as amended.
19
(c) The number of director votes required to adopt such
amendatory resolution was 5, being a majority of both the number of incumbent
directors and the number of subsisting directorships forming the Board of
Directors of the Corporation.
(d) The number of director votes cast in favor of the
adoption of such amendatory resolution was 9, thereby constituting the
unanimous approval of the incumbent members of the Board of Directors.
III. (a) The Certificate of Incorporation is further amended
by and in accordance with the following resolution of the Board of Directors
and the shareholders of the Corporation:
"RESOLVED, that Paragraph FOURTH of the Certificate
of Incorporation of the Company, as amended, be further amended by
deleting the first paragraph thereof and substituting the following:
'FOURTH. A. The total number of shares of the
capital stock of this Corporation hereby authorized is 24,000,000
divided into 6,000,000 shares of Preferred Stock without par
value, 6,000,000 shares of Class A Common Stock of the par value
of $5.00 each, and 12,000,000 shares of Class B Common Stock of
the par value of $5.00 each.'"
(b) The amendatory resolution reproduced in Paragraph
III(a) hereof was duly adopted by the Board of Directors and, as hereinafter
set forth, by the shareholders of the Corporation.
-2-
20
(c) In accordance with Sections 33-360 and 33-361 of the
Connecticut Stock Corporation Act, as amended, the following information sets
forth the voting of shareholders of the Corporation in respect of such
amendatory resolution:
(i) With respect to that part of the amendatory
resolution reproduced in Paragraph III(a) hereof which increases the
number of authorized shares of Preferred Stock to 6,000,000 shares,
adoption of the amendatory resolution required the affirmative vote of
the holders of two-thirds of the voting power of (A) the outstanding
shares of the Corporation's Series A Preferred Stock, Class A Common
Stock and Class B Common Stock voting as a single class, and (B) the
outstanding shares of the Corporation's Series A Preferred Stock
voting separately as a class. The Preferred Stock and the Class B
Common Stock confer upon the holders thereof one vote for each share
held. The Class A Common Stock confers upon the holders thereof 20
votes for each share held. That part of the amendatory resolution
which increases the number of authorized shares of Preferred Stock was
approved by 29,884,273 affirmative votes of the holders of Series A
Preferred Stock, Class A Common Stock and Class B Common Stock, voting
as a single class, and by 52,833 affirmative votes of the holders of
Series A Preferred
-3-
21
Stock voting separately as a class. The following information sets
forth in tabular form the shares entitled to vote in respect of, and
the separate and combined class votes entitled to be cast upon,
required for, and favoring, adoption of that part of the amendatory
resolution increasing the authorized Preferred Stock.
Total Voting
Power of
Shares
Class of No. of Shares Entitled Vote Required Vote Favoring
Capital Stock Entitled to Vote to Vote for Adoption Adoption
------------- ---------------- ------- ------------- -------------
Series A Preferred
Stock, Class A
Common Stock &
Class B Common Stock,
Combined as a
Single Class for 5,407,873 34,588,141 23,058,761 29,884,273
Voting Purposes Votes Votes Votes
Series A Preferred 74,237 74,237 49,492 52,833
Stock Votes Votes Votes
(ii) With respect to that part of the amendatory
resolution reproduced in Paragraph III(a) hereof which increases the
number of authorized shares of Class A Common Stock to 6,000,000
shares, adoption of the resolution required the affirmative vote of
the holders of two-thirds of the voting power of (A) the outstanding
shares of the Corporation's Series A Preferred Stock, Class A Common
Stock and Class B Common Stock voting as a single class, and (B) the
-4-
22
outstanding shares of the Corporation's Class A Common Stock voting
separately as a class. That part of the amendatory resolution which
increases the number of authorized shares of Class A Common Stock was
approved by 30,260,861 affirmative votes of the holders of Series A
Preferred Stock, Class A Common Stock and Class B Common Stock, voting
as a single class, and 27,152,100 affirmative votes of the holders of
Class A Common Stock voting separately as a class. The following
information sets forth in tabular form the shares entitled to vote in
respect of, and the separate and combined class votes entitled to be
cast upon, required for, and favoring, adoption of that part of the
amendatory resolution which increases the authorized Class A Common
Stock.
Total Voting
Power of
Shares
Class of No. of Shares Entitled Vote Required Vote Favoring
Capital Stock Entitled to Vote to Vote for Adoption Adoption
------------- ---------------- ------- ------------ ------------
Series A Preferred
Stock, Class A
Common Stock &
Class B Common Stock,
Combined as a
Single Class for 5,407,873 34,588,141 23,058,761 30,260,861
Voting Purposes Votes Votes Votes
Class A Common Stock 1,533,172 30,663,440 20,442,293 27,152,100
Votes Votes Votes
-5-
23
(iii) With respect to that part of the amendatory resolution
reproduced in Paragraph III(a) which increases the number of authorized shares
of Class B Common Stock to 12,000,000 shares, adoption of the amendatory
resolution required the affirmative vote of the holders of two-thirds of the
voting power of (A) the outstanding shares of the Corporation's Series A
Preferred Stock, Class A Common Stock and Class B Common Stock voting as a
single class, and (B) the outstanding shares of the Corporation's Class B
Common Stock voting separately as a class. That part of the amendatory
resolution which increases the authorized Class B Common Stock was approved by
30,444,866 affirmative votes of the holders of Series A Preferred Stock, Class
A Common Stock and Class B Common Stock voting as a single class, and by
3,219,461 affirmative votes of the holders of Class B Common Stock voting
separately as a class. The following information sets forth in tabular form
the shares entitled to vote in respect of, and the separate and combined class
votes entitled to be cast upon, required for, and favoring, adoption of that
part of the amendatory resolution increasing the authorized Class B Common
Stock:
-6-
24
Total Voting
Power of
Shares
Class of No. of Shares Entitled Vote Required Vote Favoring
Capital Stock Entitled to Vote to Vote for Adoption Adoption
------------- ---------------- ------- ------------ ------------
Series A Preferred
Stock, Class A
Common Stock &
Class B Common Stock,
Combined as a
Single Class for 5,407,873 34,588,141 23,058,761 30,444,866
Voting Purposes Votes Votes Votes
Class B Common Stock 3,850,464 3,850,464 2,566,977 3,219,461
Votes Votes Votes
IN WITNESS WHEREOF, the undersigned officers of the Corporation do
hereby declare and affirm, under the penalties of false statement, that the
statements made in the foregoing Certificate Amending Certificate of
Incorporation [etc.] are true.
EXECUTED at Orange, Connecticut, this 9th day of August, 1978.
HARVEY HUBBELL, INCORPORATED
By /s/ A. T. JOLDERSMA
-----------------------------------
A. T. Joldersma
Vice President
- and -
By /s/ G. J. RATCLIFFE
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G. J. Ratcliffe
Secretary
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EXHIBIT A
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HARVEY HUBBELL, INCORPORATED
SERIES C $2.06 CUMULATIVE CONVERTIBLE PREFERRED STOCK
Rights and Preferences
Resolution Creating Series C Preferred Stock
RESOLVED that Paragraph Fourth of the Certificate of Incorporation of
the corporatIon, as heretofore amended, is further amended by the addition of
the following new Section G:
G. There is hereby established a third series of Preferred Stock
designated as the "Series C $2.06 Cumulative Convertible Preferred Stock"
(hereinafter called the "Series C Preferred Stock"), to which the following
provisions shall be applicable:
(1) CERTAIN DEFINITIONS. The following terms shall have, for all
purposes of this Section G, the meanings herein specified:
(a) Common Stock. The term "Common Stock" shall mean all
shares now or hereafter authorized of the class or classes of common
stock of the corporation presently authorized and any other shares
into which such shares may hereafter be changed from time to time.
(b) Junior Stock. The term "Junior Stock" shall mean Common
Stock and any other shares of the corporation, whether now or
hereafter authorized, not entitled to receive any dividends until all
dividends accrued shall have been paid or declared and a sum
sufficient for the payment thereof set apart on the Series C
Preferred Stock, and also not entitled to receive any assets upon the
voluntary or involuntary liquidation, dissolution or winding up of
the affairs of the corporation until the Series C Preferred Stock
shall have received the entire amount to which such shares are,
entitled upon such liquidation, dissolution or winding up.
(c) Parity Stock. The term "Parity Stock" shall mean
Preferred Stock and any other shares of the corporation, whether now
or hereafter authorized, other than Junior Stock, not entitled to
receive payment of any part of the dividends theretofore accrued but
unpaid thereupon unless there shall be concurrently paid on the
Series C Preferred Stock dividends representing the same proportion
of the total dividends theretofore accrued but unpaid on the Series C
Preferred Stock and also not entitled to receive any part of the
assets upon the voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the corporation unless the Series C
Preferred Stock shall concurrently receive the same proportion of
the entire amount to which the Series C Preferred Stock is entitled.
Nothing herein contained shall preclude the Board of Directors from
fixing dividend rates, voting rights, liquidating preferences and
other rights and preferences permitted to be varied among series of
Parity Stock by Section D hereof which are different for any series of
Parity Stock from the dividend rates, voting rights, liquidating
preferences and other rights and preferences applicable to the Series
C Preferred Stock.
(d) Senior Stock. The term "Senior Stock" shall mean any
shares of the corporation, whether now or hereafter authorized, other
than Junior Stock or Parity Stock.
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(2) DIVIDENDS. (a) General. The holders of Series C Preferred Stock,
in preference to the holders of Junior Stock, shall be entitled in each year
(subject to the provisions of subparagraph (2)(b) below) to receive, as and
when declared by the Board of Directors out of any funds legally available for
the purpose, cumulative cash dividends as follows:
(i) the initial dividend on the outstanding shares of Series C
Preferred Stock issued by the corporation in connection with the
acquisition of The Ohio Brass Company shall be payable on the first
dividend payment date referred to in subparagraph (2)(a)(ii) below to
occur at least 30 days after the date of such issuance and shall be
payable from such date of issuance to such dividend payment date at
the annual rate of $2.06 per share per year; and
(ii) subsequent dividends on outstanding shares of Series C
Preferred Stock shall be payable quarterly on the 15th day of January,
April, July, and October in each year at the same annual rate of $2.06
per share per year.
(b) Cumulative Status of Dividends. All dividends on the Series C
Preferred Stock shall be cumulative and accrue from and after the date of
issuance of such shares. Any arrearages in the payment of dividends shall not
bear interest.
(c) Preferential Status of Dividends on Series C Preferred Stock. In
no event, so long as any of the Series C Preferred Stock shall be outstanding,
shall any dividend whatsoever, whether in cash, shares or otherwise, be
declared or paid, nor shall any distribution be made, on any Junior Stock, nor
shall any Junior Stock be purchased or redeemed by the corporation, nor shall
any moneys be paid or made available for a sinking fund for the purpose of
redemption of any Junior Stock, unless all accrued and unpaid dividends on all
shares of Series C Preferred Stock then outstanding to the end of the dividend
period next preceding such dividend, distribution, purchase, redemption or
sinking fund payment (and for the current dividend period if such transaction
is on a dividend payment date), shall have been paid or declared and a sum
sufficient for the payment thereof set apart. The provisions of the preceding
sentence shall not, however, apply to a dividend payable in Common Stock and no
holder of Series C Preferred Stock shall be entitled to share therein, except
to the extent provided in subparagraph 6(d) below. Any dividend paid upon
shares of Parity Stock in an amount less than all dividends accrued and unpaid
on all shares of Parity Stock then outstanding shall be paid ratably among all
of the shares of each series or class of Parity Stock in proportion to the full
amount of dividends accrued and unpaid on each such series or class. In no
event so long as any of the Series C Preferred Stock shall be outstanding shall
any Parity Stock be purchased or redeemed by the corporation nor shall any
moneys be paid or made available for a sinking fund for the purpose of
redemption of any Parity Stock, unless all accrued and unpaid dividends on
all shares of Series C Preferred Stock then outstanding to the end of the
dividend period for Series C Preferred Stock next preceding such purchase,
redemption or sinking fund payment (and for the current dividend period if such
transaction is on a dividend payment date for Series C Preferred Stock), shall
have been paid or declared and a sum sufficient for the payment thereof set
apart.
(3) DISTRIBUTIONS UPON LIQUIDATION, DISSOLUTION OR WINDING UP. In the
event of any voluntary or involuntary liquidation, dissolution or winding up
of the affairs of the corporation, then, before any distribution or payment
shall be made to the holders of Junior Stock, the holders of Series C Preferred
Stock shall be entitled to be paid in full a sum of $25 per share, plus all
accrued and unpaid dividends thereon to and including the date fixed for such
distribution or payment, but the holders of Series C Preferred Stock shall be
entitled to no further participation in any distribution or payment in
connection with any such liquidation, dissolution or winding up. If such
payment or payments shall have been made in full to the holders of the Series
C Preferred Stock and if payment shall have been made in full to the holders of
any Parity Stock of all amounts to which such holders shall be entitled, the
remaining net assets and funds of the corporation shall be distributed among
the holders of Junior Stock, according to their respective rights and
preferences, and according to their respective shares. If, upon any voluntary
or involuntary liquidation, dissolution or winding
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up of the affairs of the corporation, the net assets of the corporation
distributable among the holders of all outstanding shares of Series C Preferred
Stock and of any Parity Stock shall be insufficient to permit the payment in
full to such holders of the preferential amounts to which they are entitled,
then the entire net assets of the corporation remaining after the distribution
to holders of any Senior Stock to which they may be entitled shall be
distributed among the holders of the Series C Preferred Stock and of any Parity
Stock ratably in proportion to the full amounts to which they would otherwise
be respectively entitled. Neither the consolidation or merger of the
corporation into or with another corporation or corporations, nor the sale of
all or substantially all of the corporation's assets, nor the distribution to
the shareholders of the corporation of all or substantially all of the
consideration for such sale, unless such consideration (apart from assumption
of liabilities) or the net proceeds thereof consists substantially entirely of
cash or its equivalent, shall be deemed a liquidation, dissolution or winding
up of the affairs of the corporation within the meaning of this Section G.
(4) REDEMPTIONS. (a) Optional Redemption. The Series C Preferred
Stock may be redeemed, in whole or in part, at the option of the corporation,
by vote of its Board of Directors, at any time or from time to time after ten
years from the date of original issuance of the Series C Preferred Stock by
payment of:
If Redeemed During the 12 Month Period Commencing on the:
Tenth anniversary date of the original issuance of
the Series C Preferred Stock ...................... $26.00
Eleventh anniversary date of the original issuance of the
Series C Preferred Stock .......................... 25.90
Twelfth anniversary date of the original issuance of the
Series C Preferred Stock .......................... 25.80
Thirteenth anniversary date of the original issuance of
the Series C Preferred Stock ...................... 25.70
Fourteenth anniversary date of the original issuance of
the Series C Preferred Stock ...................... 25.60
Fifteenth anniversary date of the original issuance of the
Series C Preferred Stock .......................... 25.50
Sixteenth anniversary date of the original issuance of the
Series C Preferred Stock .......................... 25.40
Seventeenth anniversary date of the original issuance of
the Series C Preferred Stock ...................... 25.30
Eighteenth anniversary date of the original issuance of
the Series C Preferred Stock ...................... 25.20
Nineteenth anniversary date of the original issuance of
the Series C Preferred Stock ...................... 25.10
and if redeemed on or after the twentieth anniversary date of the original
issuance of the Series C Preferred Stock, $25.00 per share, plus, in each case,
all accrued and unpaid dividends thereon to and including the date fixed for
such redemption. If less than all the outstanding shares of Series C Preferred
Stock are to be redeemed, the number of shares to be redeemed and the method of
effecting such redemption, whether by lot or pro rata or other equitable
method, shall be determined by the Board of Directors in its discretion,
subject to the requirements of any national securities exchange on which such
shares shall at any time be listed.
(b) Purchases. Subject to any applicable provision of law, the
corporation shall have the right of purchase or otherwise reacquire any shares
of Series C Preferred Stock at public or private sale or otherwise, except that
no purchase of any Series C Preferred Stock shall be made unless full
cumulative dividends on all Series C Preferred Stock then outstanding which are
not to be purchased, to the end
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of the dividend period next preceding such purchase (and for the current
dividend period if such purchase is on a dividend payment date), shall have
been paid or declared and a sum sufficient for the payment thereof set apart.
(c) Sinking Fund. As and for a sinking fund for the redemption of the
Series C Preferred Stock, the corporation shall on the first day of the month
next succeeding the fifth anniversary of the date of original issuance of the
Series C Preferred Stock and on each first day of such month thereafter so long
as any shares of Series C Preferred Stock remain outstanding, set aside an
amount sufficient for the redemption of, and shall redeem, a number of shares
of Series C Preferred Stock equal to the greater of (i) 5% of the original
number of shares of Series C Preferred Stock issued by the corporation or (ii)
5% of the number of shares of Series C Preferred Stock as may be outstanding
60 days prior to the date fixed for redemption. The redemption price of shares
of Series C Preferred Stock redeemed pursuant to the aforesaid sinking fund
shall be $25 per share, plus all accrued and unpaid dividends thereon to and
including the date fixed for redemption. The price at which any shares of
Series C Preferred Stock may be redeemed pursuant to subparagraphs (4)(a) or
(4)(c) hereof plus, in each case, all accrued and unpaid dividends thereon to
and including the date fixed for redemption is hereinafter called the
"Redemption Price". The corporation may, at its option, apply toward its
sinking fund obligation any shares of Series C Preferred Stock purchased or
otherwise acquired by the corporation or redeemed by the corporation pursuant
to subparagraph (4)(a) above which have not previously been credited toward a
sinking fund obligation. The obligation of the corporation to redeem shares of
Series C Preferred Stock pursuant to this subparagraph (4)(c) shall be
cumulative. The method of effecting redemptions pursuant to this subparagraph
(4)(c), whether by lot or pro rata or other equitable method, shall be
determined by the Board of Directors in its discretion, subject to the
requirements of any national securities exchange on which such shares shall at
any time be listed.
(d) Notice of Redemption. Notice of every redemption of Series C
Preferred Stock, whether pursuant to subparagraphs (4)(a) or (4)(c) above,
shall be mailed by or on behalf of the corporation, by first class mail,
postage prepaid, addressed to the holders of record of the shares to be
redeemed at their respective addresses as they shall appear on the records of
the corporation, not less than twenty-five days nor more than ninety days prior
to the date fixed for redemption, such notice to contain a statement of or
reference to the conversion right set forth in paragraph (6) below, to state
the name and address of any Agent for redemption selected by the corporation in
accordance with subparagraph (4)(e) below, and to set forth the date as of
which such conversion right expires.
(e) Agent for Redemption. The corporation may appoint as its Agent to
redeem the Series C Preferred Stock so to be called for redemption a bank or
trust company in good standing, organized under the laws of the United States
of America or of the States of Connecticut or New York. Following such
appointment, the corporation may deliver to such Agent irrevocable
written instructions authorizing such Agent, on behalf and at the expense of
the corporation to cause notice of redemption to be duly mailed as herein
provided as soon as practicable after receipt of such irrevocable instructions,
and in accordance with the above provisions.
(f) Deposit of Funds for Redemption. If such Agent shall be so
appointed, all funds necessary for the redemption shall be deposited in trust
not more than ninety days before the date fixed for redemption with the bank or
trust company so designated, for the pro rata benefit of the holders of the
shares so called for redemption, so as to be and continue to be available
therefor. If notice of redemption shall have been given as hereinabove provided,
then from and after the date of such deposit, or if no such deposit is made,
then upon such date fixed for redemption (unless the corporation shall default
in making payment of the applicable redemption price), all rights of holders of
Series C Preferred Stock with respect to the shares so called for redemption
shall cease and terminate, except:
(i) the right of the holders of such shares upon surrender of
certificates therefor, to receive the applicable Redemption Price
thereof, but without interest; or
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EXHIBIT A (continued)
(ii) the right to exercise, at or before the close of business
on the business day preceding the date fixed for redemption, all
privileges of conversion,
and upon such conversion such shares shall no longer be outstanding. Such
deposit in trust shall be irrevocable except that any moneys so deposited by
the corporation which shall not be required for the redemption because of the
exercise of any such right of conversion subsequent to the date of deposit
shall be repaid to the corporation forthwith, and except that any balance of
moneys so deposited by the corporation and unclaimed by the holders of Series C
Preferred Stock entitled thereto at the expiration of six years from the date
fixed for redemption shall be repaid to the corporation upon its request
therefor expressed in a resolution of its Board of Directors, and after any
such repayment the holders of the shares so called for redemption shall look
only to the corporation for payment of the Redemption Price thereof.
(g) Cancellation of Redeemed or Purchased Series C Preferred Stock.
Shares of Series C Preferred Stock redeemed pursuant to subparagraphs (4)(a)
and (4)(c) hereof and Series C Preferred Stock purchased pursuant to
subparagraph (4)(b) hereof and applied to the reduction of any sinking fund
obligation pursuant to subparagraph (4)(c) shall be cancelled in the manner
provided by the laws of the State of Connecticut. Shares of Series C Preferred
Stock purchased pursuant to subparagraph (4)(b) shall be held as treasury
shares until such shares are applied to the reduction of any sinking fund
obligation pursuant to subparagraph (4)(c) or are cancelled or retired by action
of the Board of Directors.
(5) VOTING RIGHTS. In addition to any other voting rights provided in
this Certificate of Incorporation or by law, every holder of Series C Preferred
Stock shall be entitled at every meeting of shareholders to one vote for each
share of Series C Preferred Stock standing in the name of such holder on the
record of shareholders and, except as to matters which under applicable law
require the vote of the Series C Preferred Stock as a class, shall vote with the
holders of Junior Stock as a single class and, if so provided in any Senior
Stock, with the holders of Senior Stock as a single class. If at any time
there shall be accrued but unpaid dividends on the Series C Preferred Stock in
an amount equivalent to six (6) full quarterly dividends on all shares of
Series C Preferred Stock at the time outstanding, the holders of Series C
Preferred Stock shall have the right, voting as a separate class, to elect in
the aggregate two (2) members of the Board of Directors of the corporation;
provided, however, that if all accrued and unpaid dividends shall have been
paid on such shares, such right shall cease on the date of such payment but the
term of office of the directors elected pursuant to this paragraph (5) shall
continue until the annual meeting of shareholders next following such date of
payment.
(6) CONVERSION INTO COMMON STOCK. (a) General. The Series C
Preferred Stock shall be convertible, at the office of any transfer agent for
the Class B Common Stock, into Class B Common Stock of the corporation on the
basis (subject to adjustment as hereinafter provided) of 0.672 shares of Class
B Common Stock of the corporation for each share of Series C Preferred Stock so
converted, which basis, subject to adjustment as hereinafter provided, is
hereinafter sometimes called the "Conversion Rate". The corporation shall make
no payment or adjustment on account of any dividends accrued on the Series C
Preferred Stock surrendered for conversion. In case of the call for redemption
of any shares of Series C Preferred Stock, such right of conversion shall cease
and terminate, as to the shares designated for redemption, at the close of
business on the business day preceding the date fixed for redemption unless
default shall be made in the payment of the Redemption Price thereon.
(b) Effecting of Conversion. Before any holder of Series C Preferred
Stock shall be entitled to convert the same into Class B Common Stock, such
holder shall surrender the certificate or certificates therefor, duly endorsed
if required by the corporation, at the office of any transfer agent for the
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Class B Common Stock, shall give written notice to the corporation at said
office that such holder elects to convert the same and shall state in writing
therein the name or names and the denominations in which such holder wishes the
certificate or certificates for the Class B Common Stock to be issued. The
corporation will, as soon as practicable thereafter, cause to be issued and
delivered to such holder, or such holder's designee or designees, a certificate
or certificates for the number of shares of Class B Common Stock to which he
shall be entitled as aforesaid, together with a certificate or certificates
representing any shares of Series C Preferred Stock which are not to be
converted but which shall have constituted part of the Series C Preferred Stock
represented by the certificate or certificates so surrendered. No fractional
share of Class B Common Stock shall be issued on conversion. A holder of Series
C Preferred Stock who would otherwise be entitled to receive such a fractional
share shall, in lieu thereof, receive cash equal to the same fraction of the
mean between the highest and lowest per share price of the Class B Common Stock
on the American Stock Exchange (or if the shares of Class B Common Stock are
not listed or admitted to trading on the American Stock Exchange, on the
principal national securities exchange on which such shares are traded as
determined by the corporation) on the Conversion Date (as hereinafter defined)
or in the absence of any sale of such stock on such exchange on the Conversion
Date, the mean between such prices quoted on such exchange on the next
preceding day on which there shall have been such a sale, or, if such shares
are not listed or admitted to trading on any national securities exchange, the
mean between the bid and asked prices per share of such Class B Common Stock in
the over-the-counter market as reported on the NASDAQ system of the National
Association of Securities Dealers at the close of business on the Conversion
Date or such next preceding day, or, if such shares are not so quoted, the mean
between the average bid and asked prices per share of Class B Stock in the
over-the-counter market at the close of business on the Conversion Date as
furnished by any member of the National Association of Securities Dealers
selected from time to time by the corporation. Such conversion shall be
deemed to have been made as of the close of business on the date of the due
surrender of the Series C Preferred Stock to be converted (the close of
business on such date being herein sometimes called the "Conversion Date"), so
that the rights of the holder of such Series C Preferred Stock shall, to the
extent of such conversion, cease at such time and the person or persons
entitled to receive shares of Class B Common Stock upon conversion of such
Series C Preferred Stock shall be treated for all purposes as having become the
record holder or holders of such Class B Common Stock at such time, and such
conversion shall be at the Conversion Rate in effect at such time.
(c) Retirement of Converted Series C Preferred Stock. Series C
Preferred Stock converted pursuant to this paragraph (6) shall be retired in the
manner provided by the laws of the State of Connecticut.
(d) Effect on Conversion Rate of Subdivisions and Combinations of
Shares and Share Dividends and Distributions. In the event that, while any
Series C Preferred Stock shall remain outstanding, the corporation shall at
any time subdivide or combine the outstanding Class B Common Stock or issue
additional Class B Common Stock as a dividend or other distribution on the
Class B Common Stock of the corporation, the Conversion Rate in effect
immediately prior to such subdivision or combination of shares or share
dividend or distribution shall be proportionately adjusted so that, with
respect to each such subdivision of shares or share dividend or distribution,
the number of shares of Class B Common Stock deliverable upon conversion of
each of the outstanding shares of the Series C Preferred Stock shall be
increased in proportion to the increase in the number of shares of the then
outstanding Class B Common Stock resulting from such subdivision of shares or
share dividend or distribution, and with respect to each such combination of
shares, the number of shares of Class B Common Stock deliverable upon
conversion of each of the shares of Series C Preferred Stock shall be decreased
in proportion to the decrease in the number of shares of the then outstanding
Class B Common Stock resulting from such combination of shares. Any such
adjustment in the Conversion Rate shall become effective, in the case of any
such subdivision or combination of shares, at the close of business on the
effective date thereof, and, in the case of any such share dividend or
distribution, at the close of
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EXHIBIT A (continued)
business on the record date fixed for the determination of shareholders
entitled thereto or on the first business day during which the share transfer
books of the corporation shall be closed for the purpose of such determination,
as the case may be. Whenever the Conversion Rate shall be adjusted pursuant
to this paragraph (6)(d), the corporation shall promptly file with each transfer
agent for the Common Stock a notice of the Conversion Rate, as adjusted.
(e) Effect on Conversion Rate of Certain Share Dividends and
Distributions. In the event that, while any Series C Preferred Stock shall
remain outstanding, the corporation shall distribute to all holders of Class B
Common Stock assets (excluding dividends or distributions payable out of
retained earnings or earned surplus or payable in shares of Class B Common
Stock), the Conversion Rate in effect immediately prior to the record date
mentioned below shall be adjusted by multiplying the number of shares of Class
B Common Stock into which each share of Series C Preferred Stock was
theretofore convertible by a fraction, of which the numerator shall be the
current market price per share of Class B Common Stock (as determined pursuant
to subparagraph (6)(h) below) on the date of such distribution, and of which
the denominator shall be such market price per share of Class B Common Stock
less the then fair market value (as determined by the Board of Directors, whose
determination should be conclusive) of the portion of the assets so distributed
applicable to one share of Class B Common Stock, such adjustment to become
effective immediately after the opening of business on either the business day
following the record date for the determination shareholders entitled thereto
or the first business day during which the share transfer books of the
corporation shall be closed for the purpose of such determination, as the case
may be. For purposes of this subparagraph (6)(e) retained earnings or earned
surplus shall be computed by adding thereto all charges against retained
earnings or earned surplus on account of dividends or distributions of shares
of Class B Common Stock in respect of which the Conversion Rate has been
adjusted or in respect of which the Conversion Rate would have been adjusted
but for the provisions of subparagraph (6)(i), all as determined by the
independent public accountants then regularly auditing the accounts of the
corporation, whose determination shall be conclusive.
(f) Effect on Conversion Rate of Subscription Offerings. In the event
that, while any shares of Series C Preferred Stock shall be outstanding, the
corporation shall issue rights or warrants to the holders of its Class B Common
Stock as a class entitling them to subscribe for or purchase shares of Class B
Common Stock or securities convertible into or exchangeable for shares of Class
B Common Stock, the corporation shall, concurrently therewith, issue to each
then record holder of shares of Series C Preferred Stock the full amount of
such rights or warrants, to which such holder would have been entitled if, on
the date of determination of shareholders entitled to the rights or warrants
being issued by the corporation, such holder had been the holder of record of
the maximum whole number of shares of Class B Common Stock into which the
shares of Series C Preferred Stock of such holder could then have been
converted.
(g) Issuance of Class B Common Stock for Property or Services. No
adjustment in the Conversion Rate shall be made by reason of the issuance of
shares of Class B Common Stock or any security convertible into shares of Class
B Common Stock in exchange for property or services.
(h) Determination of Current Market Price Per Share. For purposes of
subparagraph (6)(e) above, the current market price per share of Class B Common
Stock on any day shall be deemed to be the average of the daily closing prices
per share of such Class B Common Stock for the ten business days commencing 15
business days prior to the date in question. The closing price per share of
Class B Common Stock for each day shall be the last reported sales price or,
in case no such reported sale takes place on such day, the average of the
reported closing bid and asked prices, in either case on the American Stock
Exchange, or, if the shares of such Class B Common Stock are not listed or
admitted to trading on such Exchange, on the principal national securities
exchange on which the shares of Class B Common Stock are listed or admitted to
trading as determined by the corporation, which determination shall be
conclusive, or, if such shares are not listed or admitted to trading on
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any national securities exchange, the mean between the bid and asked prices per
share of Class B Common Stock in the over-the-counter market as reported on the
NASDAQ system of the National Association of Securities Dealers at the close of
business on the day in question, or if such shares are not so quoted, the mean
between the average bid and asked prices per share of Class B Common Stock in
the over-the-counter market at the close of business on the day in question as
furnished by any member of the National Association of Securities Dealers
selected from time to time by the corporation for the purpose.
(i) De Minimus Adjustments. No adjustment in the Conversion Rate
shall be required unless such adjustment would require an increase or decrease
of at least one-half of one percent in such rate; provided, however, that any
adjustments which by reason of this subparagraph (6)(i) are not required to be
made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this paragraph (6) shall be made to the
nearest one-thousandth (1/1,000) of a share or to the nearest one-tenth of a
cent, as the case may be.
(j) Reorganization, Reclassification, Consolidation, Merger or Sale
of Assets. In case of any capital reorganization or any reclassification of
the capital stock of the corporation, or in case of the consolidation or merger
of the corporation with or into another corporation (including, without
limitation, the merger of another corporation into the corporation) or the
conveyance of all or substantially all of the assets of the corporation
(otherwise than for a consideration which, apart from assumption of
liabilities, consists substantially entirely of cash), each outstanding share
of Series C Preferred Stock (or share or other securities received in lieu
thereof in the transaction in question) shall thereafter be convertible or
shall be converted if so provided in the plan of reorganization approved by
the shareholders, into the number of shares or other securities or property to
which a holder of the number of shares of Class B Common Stock of the
corporation deliverable upon conversion of such Series C Preferred Stock would
have been entitled upon such reorganization, reclassification, consolidation,
merger or conveyance; and, in any such case, appropriate adjustment (as
determined by the Board of Directors) shall be made in the application of the
provisions herein set forth with respect to the rights and interests thereafter
of the holders of Series C Preferred Stock (or shares or other securities
received in lieu thereof in the transaction in question), to the end that the
provisions set forth herein (including provisions with respect to changes in
and other adjustments of the Conversion Rate) shall thereafter be applicable,
as nearly as reasonably may be, in relation to any shares or other securities
or property thereafter deliverable upon the conversion of shares of Series C
Preferred Stock (or shares or other securities received in lieu thereof in the
transaction in question).
(k) Reservation of Class B Common Stock. The corporation shall at all
times reserve and keep available out of its authorized Class B Common Stock,
for the purpose of issue upon conversion of shares of Series C Preferred Stock
as herein provided, such number of shares of Class B Common Stock as shall then
be issuable upon the conversion of all outstanding Series C Preferred Stock.
All shares of Class B Common Stock which shall be so issuable shall, when so
issued upon any such conversion, be duly and validly issued and fully paid and
nonassessable.
(l) Payment of Taxes. The issuance of certificates for shares of
Class B Common Stock upon conversion of Series C Preferred Stock shall be made
without charge to a converting shareholder for any issuance or transfer tax in
respect of the issuance of such certificates, and such certificates shall be
issued in the name of, or in such name or names as may be directed by, such
holder, provided, however, that the corporation shall not be required to pay
any transfer tax which may be payable in respect of any transfer involved in
the issuance and delivery of any such certificate in a name or names other than
that of the holder of the Series C Preferred Stock converted, and the
corporation shall not be required to issue or deliver such certificates unless
and until the person requesting the issuance thereof shall have paid to the
corporation the amount of such tax or shall have established to the
satisfaction of the corporation that such tax has been paid or is not payable.
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(7) EXCLUSION OF OTHER RIGHTS. Unless otherwise required by law, the
holders of Series C Preferred Stock shall not have any relative rights or
preferences or other special rights other than those specifically set forth
herein or otherwise in the Certificate of Incorporation of the corporation, as
amended.
(8) HEADINGS OF SUBDIVISIONS. The headings of the various
subdivisions hereof are for the convenience of reference only and shall not
affect the interpretation of any of the provisions hereof.
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CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION
of
HARVEY HUBBELL, INCORPORATED
By Action of Board of Directors
(A Connecticut Stock Corporation )
1. The name of the corporation is Harvey Hubbell, Incorporated.
2. The Certificate of Incorporation is amended by the following
resolution of the Board of Directors acting alone:
"RESOLVED that Paragraph FOURTH of the Certificate of Incorporation of
the corporation, as heretofore amended, is further amended by the addition of
the following new Section F:
F. There is hereby established a second series of Preferred Stock
consisting of 385,537 shares and designated as the 'Series B $1.75 Cumulative
Convertible Preferred Stock' (hereinafter called the 'Series B Preferred
Stock'), to which the following provisions shall be applicable:
(1) CERTAIN DEFINITIONS. The following terms shall have, for all
purposes of this Section F, the meanings herein specified:
(a) Common Stock. The term 'Common Stock' shall mean all shares now
or hereafter authorized of the classes of common stock of the corporation
presently authorized and any other shares into which such shares may hereafter
be changed from time to time.
(b) Junior Stock. The term 'Junior Stock' shall mean Common Stock and
any other shares of the corporation, whether now or hereafter authorized, not
entitled to receive any dividends until all dividends accrued shall have been
paid or declared and a sum sufficient for the payment thereof set apart on the
Series B Preferred Stock, and also not entitled to receive any assets upon the
voluntary or involuntary liquidation, dissolution or winding up of the affairs
of the corporation until the Series B Preferred Stock shall have received the
entire amount to which such shares are entitled upon such liquidation,
dissolution or winding up.
(c) Parity Stock. The term 'Parity Stock' shall mean Preferred Stock
and any other shares of the corporation, whether now or hereafter authorized,
other than Junior Stock, not entitled to receive payment of any part of the
dividends theretofore accrued but unpaid thereon unless there shall be
concurrently paid on the Series B Preferred Stock dividends representing the
same proportion of the total dividends theretofore accrued but unpaid on
the Series B Preferred Stock, and also not entitled to receive any part of the
assets upon the voluntary or involuntary liquidation, dissolution or winding up
of the affairs of the corporation unless the Series B Preferred Stock shall
concurrently receive the same proportion of the entire amount to which the
Series B Preferred Stock is entitled. Nothing herein contained shall preclude
the Board of Directors from fixing dividend rates, voting rights and
liquidating preferences which are different in amount for any series of Parity
Stock from the dividend rates, voting rights and liquidation preferences
applicable to the Series B Preferred Stock.
(d) Senior Stock. The term 'Senior Stock' shall mean any shares of
the corporation, whether now or hereafter authorized, other than Junior Stock
or Parity Stock.
(2) Dividends. (a) General. The holders of Series B Preferred Stock,
in preference to the holders of Junior Stock, shall be entitled in each year
(subject to the provisions of subparagraph (2)(b)
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below) to receive, as and when declared by the Board of Directors out of any
funds legally available for the purpose, cumulative cash dividends at the
annual rate of $1.75 per share, and not more, payable quarter-annually on the
fifteenth day of January, April, July and October in each year, commencing on
the first such date on or after the date of issuance of such shares.
(b) Cumulative Status of Dividends. All dividends on the Series B
Preferred Stock shall be cumulative and the first dividend payment following
the date of issuance of such shares shall be in the full quarterly amount. Any
arrearages in the payment of dividends shall not bear interest.
(c) Preferential Status of Dividends on Series B Preferred Stock. In
no event, so long as any of the Series B Preferred Stock shall be outstanding,
shall any dividend whatsoever, whether in cash, shares or otherwise, be
declared or paid, nor shall any distribution be made, on any Junior Stock, nor
shall any Junior Stock be purchased or redeemed by the corporation, nor shall
any moneys be paid or made available for a sinking fund for the purpose of
redemption of any Junior Stock, unless all accrued and unpaid dividends on all
shares of Series B Preferred Stock then outstanding, to the end of the dividend
period for Series B Preferred Stock next preceding such dividend, distribution,
purchase, redemption or sinking fund payment (and for the current dividend
period if such transaction is on a dividend payment date), shall have been paid
or declared and a sum sufficient for the payment thereof set apart. The
provisions of the preceding sentence shall not, however, apply to a dividend
payable in Common Stock and no holder of Series B Preferred Stock shall be
entitled to share therein, except to the extent provided in subparagraphs 6(d)
and 6(e) below. Any dividend paid upon shares of Parity Stock in an amount less
than all dividends accrued and unpaid on all shares of Parity Stock then
outstanding shall be paid ratably among all of the shares of each series or
class of Parity Stock in proportion to the full amount of dividends accrued
and unpaid on each such series or class. In no event so long as any of the
Series B Preferred Stock shall be outstanding shall any Parity Stock be
purchased or redeemed by the corporation, nor shall any moneys be paid or made
available for a sinking fund for the purpose of redemption of any Parity Stock,
unless all accrued and unpaid dividends on all shares of Series B Preferred
Stock then outstanding to the end of the dividend period for Series B Preferred
Stock next preceding such purchase, redemption or sinking fund payment (and for
the current dividend period if such transaction is on a dividend payment date
for Series B Preferred Stock), shall have been paid or declared and a sum
sufficient for the payment thereof set apart.
(3) DISTRIBUTIONS UPON LIQUIDATION, DISSOLUTION OR WINDING UP. In the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the affairs of the corporation, then, before any distribution or payment shall
be made to the holders of Junior Stock, the holders of Series B Preferred Stock
shall be entitled to be paid in full a sum of $36.00 per share, plus all
accrued and unpaid dividends thereon to and including the date fixed for such
distribution or payment, but the holders of Series B Preferred Stock shall be
entitled to no further participation in any distribution or payment in
connection with any such liquidation, dissolution or winding up. If such
payment or payments shall have been made in full to the holders of the Series B
Preferred Stock and if payment shall have been made in full to the holders of
any Parity Stock of all amounts to which such holders shall be entitled, the
remaining net assets and funds of the corporation shall be distributed among
the holders of Junior Stock, according to their respective rights and
preferences, and according to their respective shares. If, upon any voluntary
or involuntary liquidation, dissolution or winding up of the affairs of the
corporation, the net assets of the corporation distributable among the holders
of all outstanding shares of Series B Preferred Stock and of any Parity Stock
shall be insufficient to permit the payment in full to such holders of the
preferential amounts to which they are entitled, then the entire net assets of
the corporation, remaining after the distribution to holders of any Senior
Stock to which they may be entitled, shall be distributed among the holders of
the Series B Preferred Stock and of any Parity Stock ratably in proportion to
the full amounts to which they would otherwise be respectively entitled.
Neither the consolidation or merger of the corporation into or with another
corporation or corporations, nor the sale of all or substantially all of the
corporation's assets, nor the distribution to the shareholders of the
corporation of all or substantially all of the consideration for
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such sale, unless such consideration (apart from assumption of liabilities) or
the net proceeds thereof consists substantially entirely of cash or its
equivalent, shall be deemed a liquidation, dissolution or winding up of the
affairs of the corporation within the meaning of this Section F.
(4) REDEMPTION. (a) General. The Series B Preferred Stock may be
redeemed, in whole or in part, at the option of the corporation, by vote of its
Board of Directors, at any time or from time to time after seven years from the
date of the initial issuance of any shares of Series B Preferred Stock by
payment of $45.00 per share, plus all accrued and unpaid dividends thereon to
and including the date fixed for such redemption (the total sum so payable on
any such redemption being hereinafter called the 'Redemption Price'). If less
than all the outstanding shares of Series B Preferred Stock are to be redeemed,
the number of shares to be redeemed and the method of effecting such
redemption, whether by lot or pro rata or other equitable method, shall be
determined by the Board of Directors in its discretion. Subject to any
applicable provision of law, the corporation shall have the right to purchase
or otherwise reacquire any shares of Series B Preferred Stock at public or
private sale or otherwise, except that no purchase of any Series B Preferred
Stock shall be made unless full cumulative dividends on all Series B Preferred
Stock then outstanding which are not to be purchased, to the end of the
dividend period next preceding such purchase (and for the current dividend
period if such purchase is on a dividend payment date), shall have been paid or
declared and a sum sufficient for the payment thereof set apart.
(b) Notice of Redemption. Notice of every redemption of Series B
Preferred Stock shall be mailed by or on behalf of the corporation, by first
class registered or certified mail, postage prepaid, addressed to the holders
of record of the shares to be redeemed at their respective addresses as they
shall appear on the records of the corporation, not less than forty days nor
more than ninety days prior to the date fixed for redemption, such notice to
contain a statement of or reference to the conversion right set forth in
paragraph (6) below, to state the name and address of any Agent for redemption
selected by the corporation in accordance with subparagraph (4)(c) below, and
the date as of which such conversion right expires.
(c) Agent for Redemption. The corporation may appoint as its Agent
to redeem the Series B Preferred Stock so to be called for redemption a bank or
trust company in good standing, organized under the laws of the United
States of America or of the States of Connecticut or New York. Following such
appointment, the corporation may deliver to such Agent irrevocable written
instructions authorizing such Agent, on behalf and at the expense of the
corporation, to cause notice of redemption to be duly mailed as herein provided
as soon as practicable after receipt of such irrevocable instructions, and in
accordance with the above provisions.
(d) Deposits of Funds for Redemption. If such Agent shall be so
appointed, all funds necessary for the redemption shall be deposited in trust
in New York or Connecticut funds not more than ninety days before the date
fixed for redemption with the bank or trust company so designated, for the pro
rata benefit of the holders of the shares so called for redemption, so as to
be and continue to be available therefor. If notice of redemption shall have
been given as hereinabove provided, then from and after the date of such
deposit, or if no such deposit is made, then upon such date fixed for
redemption (unless the corporation shall default in making payment of the
Redemption Price), all rights of holders of Series B Preferred Stock with
respect to the shares so called for redemption shall cease and terminate,
except:
(i) the right of the holders of such shares upon surrender of
certificates therefor, to receive the Redemption Price thereof, but
without interest; or
(ii) the right to exercise, at or before the close of business
on the date which is five business days prior to the date fixed
for redemption, all privileges of conversion,
and such shares shall no longer be deemed to be outstanding. Such deposit in
trust shall be irrevocable except that any moneys so deposited by the
corporation which shall not be required for the redemption
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because of the exercise of any such right of conversion subsequent to the date
of deposit shall be repaid to the corporation forthwith, and except that any
balance of moneys so deposited by the corporation and unclaimed by the holders
of Series B Preferred Stock entitled thereto at the expiration of six years
from the date fixed for redemption shall be repaid to the corporation upon its
request therefor expressed in a resolution of its Board of Directors, and after
any such repayment the holders of the shares so called for redemption shall
look only to the corporation for payment of the Redemption Price thereof.
(e) Cancellation of Redeemed or Purchased Series B Preferred Stock.
Series B Preferred Stock redeemed or purchased by the corporation shall be
cancelled in the manner provided by the laws of the State of Connecticut.
(5) VOTING RIGHTS. In addition to any other voting rights provided in
this Certificate of Incorporation or by-law, every holder of Series B
Preferred Stock shall be entitled at every meeting of shareholders to one vote
for each share of Series B Preferred Stock standing in the name of such holder
on the record of shareholders and, except as to matters which under applicable
law require the vote of the Series B Preferred Stock as a class, shall vote
with the holders of Junior Stock as a single class. In the event of a default
in the payment of dividends as provided for in paragraph (2)(a) of this Section
F for eight (8) consecutive quarterly periods, then the holders of Preferred
Stock, including the holders of the Series B Preferred Stock and any other
series of Preferred Stock which may then be outstanding, shall have the right,
voting as a separate class, to elect in the aggregate two (2) members of the
Board of Directors of the corporation; provided, however, that if all accrued
and unpaid and current dividends shall have been paid, such right shall cease
on the day of the first special or annual meeting of stockholders of the
corporation thereafter.
(6) CONVERSION INTO COMMON STOCK. (a) General. The Series B Preferred
Stock shall be convertible, at the office of any transfer agent for the Common
Stock, into Class B Common Stock of the corporation on the basis (subject to
adjustment as hereinafter provided) of one and one-half (1-1/2) shares of Class
B Common Stock of the corporation for each share of Series B Preferred Stock so
converted, which basis, subject to adjustment as hereinafter provided, is
hereinafter sometimes called the 'Conversion Rate'. The corporation shall make
no payment or adjustment on account of any dividends accrued on the Series B
Preferred Stock surrendered for conversion. In case of the call for redemption
of any shares of Series Preferred Stock, such right of conversion shall cease
and terminate, as to the shares designated for redemption, at the close of
business on the date which is in New York City five business days prior to the
date fixed for redemption unless default shall be made in the payment of the
Redemption Price.
(b) Effecting of Conversion. Before any holder of Series B Preferred
Stock shall be entitled to convert the same into Class B Common Stock, such
holder shall surrender the certificate or certificates therefor, duly endorsed
if required by the corporation, at the office of any transfer agent for the
Class B Common Stock, shall give written notice to the corporation at said
office that such holder elects to convert the same and shall state in writing
therein the name or names and the denominations in which such holder wishes the
certificate or certificates for the Class B Common Stock to be issued. The
corporation will, as soon as practicable thereafter, cause to be issued and
delivered to such holder, or such holder's designee or designees, a certificate
or certificates for the number of shares of Class B Common Stock to which he
shall be entitled as aforesaid, together with a certificate or certificates
representing any shares of Series B Preferred Stock which are not to be
converted but which shall have constituted part of the Series B Preferred Stock
represented by the certificate or certificates so surrendered. No fractional
share of Class B Common Stock shall be issued on conversion. A holder of
Series B Preferred Stock who would otherwise be entitled to receive such a
fractional share shall, in lieu thereof, receive cash equal to the same
fraction of the mean between the highest and lowest per share price of the
Class B Common Stock on the American Stock Exchange on the Conversion Date (as
hereinafter defined) or in the absence of any sale of such stock on such
exchange on the Conversion Date, the mean between such prices quoted on such
exchange on the next preceding day on which there shall
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have been such a sale. Such conversion shall be deemed to have been made as of
the close of business on the date of such surrender of the Series B Preferred
Stock to be converted (the close of business on such date being herein
sometimes called the 'Conversion Date'), so that the rights of the holder of
such Series B Preferred Stock shall, to the extent of such conversion, cease at
such time and the person or persons entitled to receive shares of Class B
Common Stock upon conversion of such Series B Preferred Stock shall be treated
for all purposes as having become the record holder or holders of such Class B
Common Stock at such time, and such conversion shall be at the Conversion
Rate in effect at such time.
(c) Cancellation of Converted Series B Preferred Stock. Series B
Preferred Stock converted pursuant to this paragraph (6) shall be cancelled in
the manner provided by the laws of the State of Connecticut.
(d) Effect on Conversion Rate of Subdivisions and Combinations of
Shares, and Share Dividends and Distributions. In the event that, while any
Series B Preferred Stock shall remain outstanding, the corporation shall at any
time subdivide or combine any class of the outstanding Common Stock or issue
additional shares of Common Stock, as a dividend or other distribution or any
class of the Common Stock of the corporation, the Conversion Rate in effect
immediately prior to such subdivision or combination of shares or share
dividend or distribution shall be proportionately adjusted so that, with
respect to each such subdivision of shares or share dividend or distribution,
the number of shares of Common Stock deliverable upon conversion of each of the
outstanding shares of the Series B Preferred Stock shall be increased in
proportion to the increase in the number of shares of the then outstanding
Common Stock resulting from such subdivision of shares or share dividend or
distribution, and with respect to each such combination of shares, the number
of shares of Common Stock deliverable upon conversion of each of the shares of
Series B Preferred Stock shall be decreased in proportion to the decrease in
the number of shares of the then outstanding Common Stock resulting from such
combination of shares. Any such adjustment in the Conversion Rate shall become
effective, in the case of any such subdivision or combination of shares, at the
close of business on the effective date thereof, and, in the case of any such
share dividend or distribution, at the close of business on the record date
fixed for the determination of shareholders entitled thereto or on the first
business day during which the share transfer books of the corporation shall be
closed for the purpose of such determination, as the case may be. Whenever the
Conversion Rate shall be adjusted pursuant to this subparagraph (6)(d), the
corporation shall, within twenty days after such adjustment becomes effective,
mail a notice of the Conversion Rate, as adjusted, to each holder of Series B
Preferred Stock at the address of such holder as it shall appear on the records
of the corporation and shall file a similar notice with each transfer agent for
the Common Stock.
(e) Subscription Offerings of Certain Distributions to Holders of
Common Stock. In the event that, while any Series B Preferred Stock shall be
outstanding, the corporation shall issue rights or warrants to the holders of
any class of its Common Stock entitling them to subscribe for or purchase
shares of Common Stock or securities convertible into or exchangeable for
shares of Common Stock, or to subscribe for or purchase any other securities
of the corporation, or shall distribute to the holders of any class of Common
Stock shares or stock, evidences of indebtedness or assets (excluding cash
dividends and distributions in the nature of cash dividends, and also excluding
distributions of the types referred to in subparagraph 6(d) above), the
corporation shall, concurrently therewith, issue to each then record holder of
Series B Preferred Stock the full amount of such rights or warrants, or shall
distribute to each such holder the same shares of stock, evidences of
indebtedness or assets, to which such holder would have been entitled if, on
the date of determination of shareholders entitled to the rights or warrants
being issued by the corporation or to the shares of stock, evidences of
indebtedness or assets being distributed by the corporation, such holder had
been the holder of record of the maximum whole number of shares of Common Stock
into which the Series B Preferred Stock of such holder could then have been
converted.
(f) Reorganization, Reclassification, Consolidation, Merger or Sale of
Assets. In case of any capital reorganization or any reclassification of any
class of the Common Stock of the corporation, or in case of the consolidation
or merger of the corporation with or into another corporation or the
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conveyance of all or substantially all of the assets of the corporation
(otherwise than for a consideration which, apart from assumption of
liabilities, consists substantially entirely of cash), each outstanding share
of Series B Preferred Stock (or share or other securities received in lieu
thereof in the transaction in question) shall thereafter be convertible or
shall be converted if so provided in the plan of reorganization approved by the
shareholders, into the number of shares or other securities or property to
which a holder of the number of shares of Class B Common Stock of the
corporation deliverable upon conversion of such Series B Preferred Stock would
have been entitled upon such reorganization, reclassification, consolidation,
merger or conveyance; and, in any such case, appropriate adjustment (as
determined by the Board of Directors) shall be made in the application of the
provisions herein set forth with respect to the rights and interests thereafter
of the holders of Series B Preferred Stock (or shares or other securities
received in lieu thereof in the transaction in question), to the end that the
provisions set forth herein (including provisions with respect to changes in
and other adjustments of the Conversion Rate) shall thereafter be applicable,
as nearly as reasonably may be, in relation to any shares or other securities
or property thereafter deliverable upon the conversion of shares of Series B
Preferred Stock (or shares or other securities received in lieu thereof in the
transaction in question).
(g) Reservation of Class B Common Stock. The corporation shall at all
times reserve and keep available out of its authorized Class B Common Stock,
for the purpose of issue upon conversion of shares of Series B Preferred Stock
as herein provided, such number of shares of Class B Common Stock as shall then
be issuable upon the conversion of all outstanding Series B Preferred Stock.
All shares of Class B Common Stock which shall be so issuable shall, when so
issued upon any such conversion, be duly and validly issued and fully paid and
nonassessable.
(h) Payment of Taxes. The issuance of certificates for shares of Class
B Common Stock upon conversion of Series B Preferred Stock shall be made
without charge to a converting shareholder for any issuance or transfer tax in
respect of the issuance of such certificates, and such certificates shall be
issued in the name of, or in such name or names as may be directed by, such
holder, provided, however, that the corporation shall not be required to pay
any transfer tax which may be payable in respect of any transfer involved in
the issuance and delivery of any such certificate in a name or names other
than that of the holder of the Series B Preferred Stock converted, and the
corporation shall not be required to issue or deliver such certificates unless
and until the person requesting the issuance thereof shall have paid to the
corporation the amount of such tax or shall have established to the
satisfaction of the corporation that such tax has been paid or is not payable.
(i) Notices to Holders of Series B Preferred Stock. In the event that
while any Series B Preferred Stock shall remain outstanding:
(i) the corporation shall declare any dividend or other
distribution on shares of Common Stock payable otherwise than in cash
out of its retained earnings; or
(ii) the corporation shall offer for subscription pro rata to
the holders of any class of Common Stock any additional shares of any
class or any other securities; or
(iii) there shall occur any consolidation with or merger of
the corporation into another corporation or a conveyance to another
corporation of all or substantially all of the assets of the
corporation, or a reclassification of any class of the Common Stock of
the corporation into securities including other than Common Stock; or
(iv) there shall occur any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
corporation;
then, and in any one or more of such cases, the corporation shall mail to each
holder of Series B Preferred Stock, at the address of each such holder as it
appears on the records of the corporation, a notice stating (A) the day on
which the books of the corporation shall close, or a record shall be taken, for
such dividend, distribution or subscription rights and the amount and character
of such
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dividend, distribution or subscription rights or (B) the day on which such
consolidation, merger, conveyance, reclassification, liquidation, dissolution
or winding up shall take place and the terms of such transaction. Such notice
shall be mailed at least twenty days in advance of the day therein specified.
(7) EXCLUSION OF OTHER RIGHTS. Unless otherwise required by law, the
holders of Series B Preferred Stock shall not have any relative rights or
preferences or other special rights other than those specifically set forth
herein or otherwise in the Certificate of Incorporation of the corporation, as
amended.
(8) HEADINGS OF SUBDIVISIONS. The headings of the various subdivisions
hereof are for convenience of reference only and shall not affect the
interpretation of any of the provisions hereof."
--------------------
3. The above resolution was adopted by the Board of Directors acting
alone, the Board of Directors being so authorized pursuant to Section 33-341 of
the General Statutes of Connecticut, as amended.
4. The number of affirmative votes required to adopt such resolution
was 5.
5. The directors' votes in favor of such resolution was 9.
Dated at Bridgeport, Connecticut this 10th day of November, 1970.
We hereby declare under the penalties of perjury that the statements
made in the foregoing certificate are true.
/s/ G.R. WEPPLER
---------------------------
G.R. Weppler, President
/s/ A.T. JOLDERSMA
---------------------------
A.T. Joldersma, Secretary
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HARVEY HUBBELL, INCORPORATED
(A Stock Corporation)
Restated Certificate of Incorporation
(By Action of the Board of Directors)
1. The name of the corporation is HARVEY HUBBELL, INCORPORATED.
2. The Certificate of Incorporation is restated only by the
following resolution of the Board of Directors acting alone:
"RESOLVED, that the following is adopted as the restated
Certificate of Incorporation of Harvey Hubbell, Incorporated:
FIRST. That the name of the corporation is Harvey Hubbell,
Incorporated.
SECOND: That said corporation is located in the Town of Bridgeport,
County of Fairfield, in the State of Connecticut.
THIRD: That the nature of the business to be transacted, and
the purposes to be promoted or carried out, by said corporation are as follows:
To manufacture, buy, sell, own, and deal in machinery, tools,
machine screws, electrical goods, supplies, apparatus, devices and fixtures of
every character, material and description, and to buy, sell, own, and deal in
letters patent and rights and licenses under letters patent, necessary or
convenient for the prosecution of its business, and to grant rights and
licenses to others under letters patent which may be owned by said corporation,
and to buy, sell, mortgage, own and deal in such real estate as may be
necessary or convenient for the prosecution of its business, and generally to
do all things necessary or convenient for the prosecution of its business, and
the proper conduct and management thereof.
FOURTH. A. The total number of shares of the capital stock of this
corporation hereby authorized is 12,457,672, divided into 3,457,672 shares of
Preferred Stock without par value, 3,000,000 shares of Class A Common Stock of
the par value of $5 each, and 6,000,000 shares of Class B Common Stock of the
par value of $5 each.
B. Except as may otherwise be provided by law, the holders of record
of Class A and Class B Common Stock shall vote as a single class, and the
holder of record of each issued and outstanding share of Class A Common Stock
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shall be entitled to have 20 votes and the holder of record of each issued and
outstanding share of Class B Common Stock shall be entitled to have one vote,
upon all matters brought before any meeting of the stockholders of the
corporation. In all other respects, whether as to dividends or upon
liquidation, dissolution or winding up of the affairs of the corporation, or
otherwise, the holders of record of the Class A Common Stock and the holders of
record of the Class B Common Stock shall have identical rights and privileges
on the basis of the number of shares held.
C. No holder of stock of the corporation of any class shall have any
pre-emptive or other rights to subscribe to or purchase any new or additional
or increased shares of stock of this corporation of any class or any scrip,
rights, warrants, bonds or other obligations, security or evidences of
indebtedness, whether or not convertible into or exchangeable for, or shall
claim rights to purchase or otherwise acquire, shares of stock of the
corporation of any class.
D. The Preferred Stock may be issued from time to time in series and
each series shall be so designated as to distinguish the shares thereof from
the shares of all other series. All shares of Preferred Stock shall be of
equal rank and shall be identical except as expressly determined by the Board
of Directors pursuant to this paragraph FOURTH. The Board of Directors is
hereby expressly vested with authority to fix and determine the variations as
among such series. Except as otherwise provided by law, the foregoing
authority shall include without limitation with respect to each such series
authority to fix and determine the number of shares thereof, the dividend rate,
whether dividends shall be cumulative and, if so, from which date or dates,
voting rights, liquidation rights, the redemption price or prices, if any, and
the terms and conditions of the redemption, any sinking fund provisions for the
redemption or purchase of shares of the series, and the terms and conditions on
which the shares are convertible into Class A Common Stock or Class B Common
Stock, or both, if they are convertible; provided, however, that all shares of
Preferred Stock shall constitute one and the same class, and shall be of equal
rank, regardless of series, in respect of the payment of dividends and
distributions in liquidation. Before the issuance of shares of Preferred Stock
any provision of which is fixed by the Board of Directors as hereinbefore set
forth the Board of Directors shall by its Resolution amend the Certificate of
Incorporation as required by Section 33-341 of the Stock Corporation Act of the
State of Connecticut.
E. There is hereby established a first series of Preferred Stock
designated as the 'Series A $1.75 Cumulative Convertible Preferred Stock'
(hereinafter called the '$1.75 Preferred Stock'), to which the following
provisions shall be applicable:
(1) CERTAIN DEFINITIONS. The following terms, shall have, for all
purposes of this Section E, the meanings herein specified:
(a) Common Stock. The term 'Common Stock' shall mean
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all shares now or hereafter authorized of the class or classes of common stock
of the corporation presently authorized and any other shares into which such
shares may hereafter be changed from time to time.
(b) Junior Stock. The term 'Junior Stock' shall mean Common Stock and
any other shares of the corporation, whether now or hereafter authorized, not
entitled to receive any dividends until all dividends accrued shall have been
paid or declared and a sum sufficient for the payment thereof set apart on the
$1.75 Preferred Stock, and also not entitled to receive any assets upon the
voluntary or involuntary liquidation, dissolution or winding up of the affairs
of the corporation until the $1.75 Preferred Stock shall have received the
entire amount to which such shares are entitled upon such liquidation,
dissolution or winding up.
(c) Parity Stock. The term 'Parity Stock' shall mean Preferred Stock
and any other shares of the corporation, whether now or hereafter authorized,
other than Junior Stock, not entitled to receive payment of any part of the
dividends theretofore accrued but unpaid thereon unless there shall be
concurrently paid on the $1.75 Preferred Stock dividends representing the same
proportion of the total dividends theretofore accrued but unpaid on the $1.75
Preferred Stock, and also not entitled to receive any part of the assets upon
the voluntary or involuntary liquidation, dissolution or winding up of the
affairs of the corporation unless the $1.75 Preferred Stock shall concurrently
receive the same proportion of the entire amount to which the $1.75 Preferred
Stock is entitled. Nothing herein contained shall preclude the Board of
Directors from fixing dividend rates, voting rights and liquidating preferences
which are different in amount for any series of Parity Stock from the dividend
rates, voting rights and liquidating preferences applicable to the $1.75
Preferred Stock.
(d) Senior Stock. The term 'Senior Stock' shall mean any shares of the
corporation, whether now or hereafter authorized, other than Junior Stock or
Parity Stock.
(2) DIVIDENDS. (a) General. The holders of $1.75 Preferred Stock, in
preference to the holders of Junior Stock, shall be entitled in each year
(subject to the provisions of subparagraph(2)(b) below) to receive, as and when
declared by the Board of Directors out of any funds legally available for the
purpose, cumulative cash dividends at the annual rate of $1.75 per share, and
not more, payable quarter-annually on the fifteenth day of March, June,
September and December in each year, commencing on the first such date on or
after the date of issuance of such shares.
(b) Cumulative Status of Dividends. All dividends on the $1.75
Preferred Stock shall be cumulative and accrue from and after the date of
issuance of such shares. Any arrearages in the payment of dividends shall not
bear interest.
(c) Preferential Status of Dividends on $1.75 Preferred Stock. In no
event, so long as any of the $1.75 Preferred
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44
Stock shall be outstanding, shall any dividend whatsoever, whether in cash,
shares or otherwise, be declared or paid, nor shall any distribution be made,
on any Junior Stock, nor shall any Junior Stock be purchased or redeemed by the
corporation, nor shall any moneys be paid or made available for a sinking fund
for the purpose of redemption of any Junior Stock, unless all accrued and
unpaid dividends on all shares of $1.75 Preferred Stock then outstanding, to
the end of the dividend period next preceding such dividend, distribution,
purchase, redemption or sinking fund payment (and for the current dividend
period if such transaction is on a dividend payment date), shall have been paid
or declared and a sum sufficient for the payment thereof set apart. The
provisions of the preceding sentence shall not, however, apply to a dividend
payable in Common Stock and no holder of $1.75 Preferred Stock shall be
entitled to share therein, except to the extent provided in subparagraphs 6(d)
and 6(e) below. Any dividend paid upon shares of Parity Stock in an amount
less than all dividends accrued and unpaid on all shares of Parity Stock then
outstanding shall be paid ratably among all of the shares of each series or
class of Parity Stock in proportion to the full amount of dividends accrued and
unpaid on each such series or class. In no event so long as any of the $1.75
Preferred Stock shall be outstanding shall any Parity Stock be purchased or
redeemed by the corporation, nor shall any moneys be paid or made available for
a sinking fund for the purpose of redemption of any Parity Stock, unless all
accrued and unpaid dividends on all shares of $1.75 Preferred Stock then
outstanding to the end of the dividend period for $1.75 Preferred Stock next
preceding such purchase, redemption or sinking fund payment (and for the
current dividend period if such transaction is on a dividend payment date for
$1.75 Preferred Stock), shall have been paid or declared and a sum sufficient
for the payment thereof set apart.
(3) DISTRIBUTIONS UPON LIQUIDATION, DISSOLUTION OR WINDING UP. In the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the affairs of the corporation, then, before any distribution or payment shall
be made to the holders of Junior Stock, the holders of $1.75 Preferred Stock
shall be entitled to be paid in full a sum of $45 per share, plus all accrued
and unpaid dividends thereon to and including the date fixed for such
distribution or payment, but the holders of $1.75 Preferred Stock shall be
entitled to no further participation in any distribution or payment in
connection with any such liquidation, dissolution or winding up. If such payment
or payments shall have been made in full to the holders of the $1.75 Preferred
Stock and if payment shall have been made in full to the holders of any Parity
Stock of all amounts to which such holders shall be entitled, the remaining net
assets and funds of the corporation shall be distributed among the holders of
Junior Stock, according to their respective rights and preferences, and
according to their respective shares. If, upon any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the corporation, the
net assets of the corporation distributable among the holders of all
outstanding shares of $1.75 Preferred Stock and of any Parity Stock shall be
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45
insufficient to permit the payment in full to such holders of the preferential
amounts to which they are entitled, then the entire net assets of the
corporation, remaining after the distribution to holders of any Senior Stock to
which they may be entitled, shall be distributed among the holders of the $1.75
Preferred Stock and of any Parity Stock ratably in proportion to the full
amounts to which they would otherwise be respectively entitled. Neither the
consolidation or merger of the corporation into or with another corporation or
corporations, nor the sale of all or substantially all of the corporation's
assets, nor the distribution to the shareholders of the corporation of all or
substantially all of the consideration for such sale, unless such consideration
(apart from assumption of liabilities) or the net proceeds thereof consists
substantially entirely of cash or its equivalent, shall be deemed a
liquidation, dissolution or winding up of the affairs of the corporation within
the meaning of this Section E.
(4) REDEMPTION. (a) General. The $1.75 Preferred Stock may be
redeemed, in whole or in part, at the option of the corporation, by vote of its
Board of Directors, at any time or from time to time after five years from the
date of issuance of such shares by payment of:
If Redeemed During the 12 Month
Period Commencing on the:
Fifth anniversary date of the issuance of the
$1.75 Preferred Stock . . . . . . . . . . . . . . . . . . . . . $65.00
Sixth anniversary date of the issuance of the
$1.75 Preferred Stock . . . . . . . . . . . . . . . . . . . . . 63.00
Seventh anniversary date of the issuance of the
$1.75 Preferred Stock . . . . . . . . . . . . . . . . . . . . . 61.00
Eighth anniversary date of the issuance of the
$1.75 Preferred Stock . . . . . . . . . . . . . . . . . . . . . 59.00
Ninth anniversary date of the issuance of the
$1.75 Preferred Stock . . . . . . . . . . . . . . . . . . . . . 57.00
and if redeemed on or after the tenth anniversary date of the issuance of the
$1.75 Preferred Stock, $55.00 per share, plus all accrued and unpaid dividends
thereon to and including the date fixed for such redemption (the total sum so
payable on any such redemption being hereinafter called the 'Redemption
Price'). If less than all the outstanding shares of $1.75 Preferred Stock are
to be redeemed, the number of shares to be redeemed and the method of effecting
such redemption, whether by lot or pro rata or other equitable method, shall be
determined by the Board of Directors in its discretion. Subject to any
applicable provision of law, the corporation shall have the right to purchase
or otherwise reacquire any shares of $1.75 Preferred Stock at public or private
sale or otherwise, except that no purchase of any $1.75 Preferred Stock shall
be made unless full cumulative dividends on all $1.75 Preferred Stock then
outstanding which are not to be purchased, to the end of the dividend period
next preceding such purchase (and for the current dividend period if such
purchase is on a dividend payment date), shall have been paid or declared and a
sum sufficient for the payment thereof set apart.
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(b) Notice of Redemption. Notice of every redemption of $1.75
Preferred Stock shall be mailed by or on behalf of the corporation, by first
class registered or certified mail, postage prepaid, addressed to the holders
of record of the shares to be redeemed at their respective addresses as they
shall appear on the records of the corporation, not less than forty days nor
more than ninety days prior to the date fixed for redemption, such notice to
contain a statement of or reference to the conversion right set forth in
paragraph (6) below, to state the name and address of any Agent for redemption
selected by the corporation in accordance with subparagraph (4)(c) below, and
the date as of which such conversion right expires.
(c) Agent for Redemption. The corporation may appoint as its
Agent to redeem the $1.75 Preferred Stock so to be called for redemption a bank
or trust company in good standing, organized under the laws of the United
States of America or of the States of Connecticut or New York. Following such
appointment, the corporation may deliver to such Agent irrevocable written
instructions authorizing such Agent, on behalf and at the expense of the
corporation to cause notice of redemption to be duly mailed as herein provided
as soon as practicable after receipt of such irrevocable instructions, and in
accordance with the above provisions.
(d) Deposit of Funds for Redemption. If such Agent shall be so
appointed, all funds necessary for the redemption shall be deposited in trust
in New York funds not more than ninety days before the date fixed for
redemption with the bank or trust company so designated, for the pro rata
benefit of the holders of the shares so called for redemption, so as to be and
continue to be available therefor. If notice of redemption shall have been
given as hereinabove provided, then from and after the date of such deposit, or
if no such deposit is made, then upon such date fixed for redemption (unless
the corporation shall default in making payment of the Redemption Price), all
rights of holders of $1.75 Preferred Stock with respect to the shares so called
for redemption shall cease and terminate, except:
(i) the right of the holders of such shares upon
surrender of certificates therefor, to receive the Redemption Price
thereof, but without interest; or
(ii) the right to exercise, at or before the close of
business on the date which is five business days prior to the date
fixed for redemption, all privileges of conversion,
and such shares shall no longer be deemed to be outstanding. Such deposit in
trust shall be irrevocable except that any moneys so deposited by the
corporation which shall not be required for the redemption because of the
exercise of any such right of conversion subsequent to the date of deposit
shall be repaid to the corporation forthwith, and except that any balance of
moneys so deposited by the corporation and unclaimed by the holders of $1.75
Preferred Stock entitled thereto at the expiration of six years from the date
fixed for redemption shall be repaid to the corporation
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47
upon its request therefor expressed in a resolution of its Board of Directors,
and after any such repayment the holders of the shares so called for redemption
shall look only to the corporation for payment of the Redemption Price thereof.
(e) Cancellation of Redeemed or Purchased $1.75 Preferred Stock.
$1.75 Preferred Stock redeemed or purchased by the corporation shall be
cancelled in the manner provided by the laws of the State of Connecticut.
(5) VOTING RIGHTS. In addition to any other voting rights
provided in this Certificate of Incorporation or by law, every holder of $1.75
Preferred Stock shall be entitled at every meeting of shareholders to one vote
for each share of $1.75 Preferred Stock standing in the name of such holder on
the record of shareholders and, except as to matters which under applicable law
require the vote of the $1.75 Preferred Stock as a class, shall vote with the
holders of Junior Stock as a single class. In the event of a default in the
payment of dividends as provided for in paragraph (2)(a) of this Section E for
eight (8) consecutive quarterly periods, then the holders of Preferred Stock,
including the holders of the $1.75 Preferred Stock and any other series of
Preferred Stock which may then be outstanding, shall have the right, voting as
a separate class, to elect in the aggregate two (2) members of the Board of
Directors of the corporation; provided, however, that if all accrued and unpaid
and current dividends shall have been paid, such right shall cease on the day
of the first special or annual meeting of stockholders of the corporation
thereafter.
(6) CONVERSION INTO COMMON STOCK. (a) General. The $1.75
Preferred Stock shall be convertible, at the office of any transfer agent for
the Common Stock, into Class B Common Stock of the corporation on the basis
(subject to adjustment as hereinafter provided) of one and one-eighth (1-1/8)
shares of Class B Common Stock of the corporation for each share of $1.75
Preferred Stock so converted, which basis, subject to adjustment as hereinafter
provided, is hereinafter sometimes called the 'Conversion Rate'. The
corporation shall make no payment or adjustment on account of any dividends
accrued on the $1.75 Preferred Stock surrendered for conversion. In case of
the call for redemption of any shares of $1.75 Preferred Stock, such right of
conversion shall cease and terminate, as to the shares designated for
redemption, at the close of business on the date which is in New York City five
business days prior to the date fixed for redemption unless default shall be
made in the payment of the Redemption Price.
(b) Effecting of Conversion. Before any holder of $1.75
Preferred Stock shall be entitled to convert the same into Class B Common
Stock, such holder shall surrender the certificate or certificates therefor,
duly endorsed if required by the corporation, at the office of any transfer
agent for the Class B Common Stock, shall give written notice to the
corporation at said office that such holder elects to convert the same and
shall state in writing therein the name or names and the denominations in which
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such holder wishes the certificate or certificates for the Class B Common Stock
to be issued. The corporation will, as soon as practicable thereafter, cause
to be issued and delivered to such holder, or such holder's designee or
designees, a certificate or certificates for the number of shares of Class B
Common Stock to which he shall be entitled as aforesaid, together with a
certificate or certificates representing any shares of $1.75 Preferred Stock
which are not to be converted but which shall have constituted part of the
$1.75 Preferred Stock represented by the certificate or certificates so
surrendered. No fractional share of Class B Common Stock shall be issued on
conversion. A holder of $1.75 Preferred Stock who would otherwise be entitled
to receive such a fractional share shall, in lieu thereof, receive cash equal
to the same fraction of the mean between the highest and lowest per share price
of the Class B Common Stock on the American Stock Exchange on the Conversion
Date (as hereinafter defined) or in the absence of any sale of such stock on
such exchange on the Conversion Date, the mean between such prices quoted on
such exchange on the next preceding day on which there shall have been such a
sale. Such conversion shall be deemed to have been made as of the close of
business on the date of such surrender of the $1.75 Preferred Stock to be
converted (the close of business on such date being herein sometimes called the
'Conversion Date'), so that the rights of the holder of such $1.75 Preferred
Stock shall, to the extent of such conversion, cease at such time and the
person or persons entitled to receive shares of Class B Common Stock upon
conversion of such $1.75 Preferred Stock shall be treated for all purposes as
having become the record holder or holders of such Class B Common Stock at such
time, and such conversion shall be at the Conversion Rate in effect at such
time.
(c) Retirement of Converted $1.75 Preferred Stock. $1.75
Preferred Stock converted pursuant to this paragraph (6) shall be retired in
the manner provided by the laws of the State of Connecticut.
(d) Effect on Conversion Rate of Subdivisions and Combinations
of Shares, and Share Dividends and Distributions. In the event that, while any
$1.75 Preferred Stock shall remain outstanding, the corporation shall at any
time subdivide or combine the outstanding Common Stock or issue additional
Common Stock, as a dividend or other distribution on the Common Stock of the
corporation, the Conversion Rate in effect immediately prior to such
subdivision or combination of shares or share dividend or distribution shall be
proportionately adjusted so that, with respect to each such subdivision of
shares or share dividend or distribution, the number of shares of Common Stock
deliverable upon conversion of each of the outstanding shares of the $1.75
Preferred Stock shall be increased in proportion to the increase in the number
of shares of the then outstanding Common Stock resulting from such subdivision
of shares or share dividend or distribution, and with respect to each such
combination of shares, the number of shares of Common Stock deliverable upon
conversion of each of the shares of $1.75 Preferred Stock shall be decreased in
proportion to the
-8-
49
decrease in the number of shares of the then outstanding Common Stock resulting
from such combination of shares. Any such adjustment in the Conversion Rate
shall become effective, in the case of any such subdivision or combination of
shares, at the close of business on the effective date thereof, and, in the
case of any such share dividend or distribution, at the close of business on
the record date fixed for the determination of shareholders entitled thereto or
on the first business day during which the share transfer books of the
corporation shall be closed for the purpose of such determination, as the case
may be. Whenever the Conversion Rate shall be adjusted pursuant to this
paragraph (6)(d), the corporation shall, within twenty days after such
adjustment becomes effective, mail a notice of the Conversion Rate, as
adjusted, to each holder of $1.75 Preferred Stock at the address of such holder
as it shall appear on the records of the corporation and shall file a similar
notice with each transfer agent for the Common Stock.
(e) Subscription Offerings or Certain Distributions to Holders
of Common Stock. In the event that, while any $1.75 Preferred Stock shall be
outstanding, the corporation shall issue rights or warrants to the holders of
its Common Stock as a class entitling them to subscribe for or purchase shares
of Common Stock or securities convertible into or exchangeable for shares of
Common Stock, or to subscribe for or purchase any other securities of the
corporation, or shall distribute to the holders of Common Stock shares of
stock, evidences of indebtedness or assets (excluding cash dividends and
distributions in the nature of cash dividends, and also excluding distributions
of the types referred to in subparagraph 6(d) above), the corporation shall,
concurrently therewith, issue to each then record holder of $1.75 Preferred
Stock the full amount of such rights or warrants, or shall distribute to each
such holder the same shares of stock, evidences of indebtedness or assets, to
which such holder would have been entitled if, on the date of determination of
shareholders entitled to the rights or warrants being issued by the corporation
or to the shares of stock, evidences of indebtedness or assets being
distributed by the corporation, such holder had been the holder of record of
the maximum whole number of shares of Common Stock into which the $1.75
Preferred Stock of such holder could then have been converted.
(f) Reorganization, Reclassification, Consolidation, Merger or
Sale of Assets. In case of any capital reorganization or any reclassification
of the capital stock of the corporation, or in case of the consolidation or
merger of the corporation with or into another corporation or the conveyance of
all or substantially all of the assets of the corporation (otherwise than for a
consideration which, apart from assumption of liabilities, consists
substantially entirely of cash), each outstanding share of $1.75 Preferred
Stock (or share or other securities received in lieu thereof in the transaction
in question) shall thereafter be convertible or shall be converted if so
provided in the plan of reorganization approved by the shareholders, into the
number
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50
of shares or other securities or property to which a holder of the number of
shares of Class B Common Stock of the corporation deliverable upon conversion
of such $1.75 Preferred Stock would have been entitled upon such
reorganization, reclassification, consolidation, merger or conveyance; and, in
any such case, appropriate adjustment (as determined by the Board of Directors)
shall be made in the application of the provisions herein set forth with
respect to the rights and interests thereafter of the holders of $1.75
Preferred Stock (or shares or other securities received in lieu thereof in the
transaction in question), to the end that the provisions set forth herein
(including provisions with respect to changes in and other adjustments of the
Conversion Rate) shall thereafter be applicable, as nearly as reasonably may
be, in relation to any shares or other securities or property thereafter
deliverable upon the conversion of shares of $1.75 Preferred Stock (or shares
or other securities received in lieu thereof in the transaction in question).
(g) Reservation of Class B Common Stock. The corporation shall
at all times reserve and keep available out of its authorized Class B Common
Stock, for the purpose of issue upon conversion of shares of $1.75 Preferred
Stock as herein provided, such number of shares of Class B Common Stock as
shall then be issuable upon the conversion of all outstanding $1.75 Preferred
Stock. All shares of Class B Common Stock which shall be so issuable shall,
when so issued upon any such conversion, be duly and validly issued and fully
paid and non-assessable.
(h) Payment of Taxes. The issuance of certificates for shares
of Class B Common Stock upon conversion of $1.75 Preferred Stock shall be made
without charge to a converting shareholder for any issuance or transfer tax in
respect of the issuance of such certificates, and such certificates shall be
issued in the name of, or in such name or names as may be directed by, such
holder, provided, however, that the corporation shall not be required to pay
any transfer tax which may be payable in respect of any transfer involved in
the issuance and delivery of any such certificate in a name or names other than
that of the holder of the $1.75 Preferred Stock converted, and the corporation
shall not be required to issue or deliver such certificates unless and until
the person requesting the issuance thereof shall have paid to the corporation
the amount of such tax or shall have established to the satisfaction of the
corporation that such tax has been paid or is not payable.
(i) Notices to Holders of $1.75 Preferred Stock. In the event
that while any $1.75 Preferred Stock shall remain outstanding:
(i) the corporation shall declare any dividend or
other distribution on shares of Common Stock payable otherwise than
in cash out of its retained earnings; or
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(ii) the corporation shall offer for subscription pro
rata to the holders of shares of Common Stock any additional shares
of any class or any other securities; or
(iii) there shall occur any consolidation with or merger
of the corporation into another corporation or a conveyance to
another corporation of all or substantially all of the assets of
the corporation, or a reclassification of the Common Stock of the
corporation into securities including other than Common Stock; or
(iv) there shall occur any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
corporation;
then, and in any one or more of such cases, the corporation shall mail to each
holder of $1.75 Preferred Stock, at the address of each such holder as it
appears on the records of the corporation, a notice stating (A) the day on
which the books of the corporation shall close, or a record shall be taken, for
such dividend, distribution or subscription rights and the amount and character
of such dividend, distribution or subscription rights or (B) the day on which
such consolidation, merger, conveyance, reclassification, liquidation,
dissolution or winding up shall take place and the terms of such transaction.
Such notice shall be mailed at least twenty days in advance of the day therein
specified.
7. EXCLUSION OF OTHER RIGHTS. Unless otherwise required by
law, the holders of $1.75 Preferred Stock shall not have any relative rights or
preferences or other special rights other than those specifically set forth
herein or otherwise in the Certificate of Incorporation of the corporation, as
amended.
8. HEADINGS OF SUBDIVISIONS. The headings of the various
subdivisions hereof are for convenience of reference only and shall not affect
the interpretation of any of the provisions hereof.
FIFTH: That the amount of capital with which this
corporation shall commence business is one hundred thousand dollars.
SIXTH: That the duration of the corporation is unlimited."
3. The above resolution merely restates and does not
change the provisions of the original Certificate of Incorporation as
supplemented and amended, and there is no discrepancy between the provisions of
the original Certificate of Incorporation as supplemented and amended and the
provisions of this Restated Certificate of
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Incorporation.
4. The above resolution was adopted by the Board of
Directors acting alone, the Board of Directors being so authorized pursuant to
Section 33-362, Conn. G.S., as amended.
5. The number of affirmative votes required to adopt
such resolution is three.
6. The number of directors' votes in favor of this
resolution was eight.
DATED AT Bridgeport, Connecticut, this 9th day of June, 1970.
We hereby declare, under the penalties of perjury, that the
statements made in the foregoing Certificate are true.
/s/ G.R. WEPPLER
------------------------------
George R. Weppler, President
/s/ A. T. JOLDERSMA
-------------------------------
Alfred T. Joldersma, Secretary
[Seal of the State of Connecticut]
FILED
3:25 P.M. JUN 30 1970
Ella T. Grasso, Secretary of State
By: F. S. Hoffer, Jr.
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EXHIBIT 4.3
-----------
--------------------------------------------------------------------------------
HUBBELL INCORPORATED
AND
CHEMICAL BANK,
TRUSTEE
------------------------
INDENTURE
DATED AS OF AUGUST , 1995
------------------------
SENIOR DEBT SECURITIES
--------------------------------------------------------------------------------
2
TABLE OF CONTENTS
PAGE
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.................. 1
Section 1.01. Definitions.............................................................. 1
Section 1.02. Compliance Certificates and Opinions..................................... 8
Section 1.03. Form of Documents Delivered to Trustee................................... 9
Section 1.04. Notices, etc., to Trustee and Company.................................... 9
Section 1.05. Notice to Holders; Waiver................................................ 9
Section 1.06. Conflict with Trust Indenture Act........................................ 10
Section 1.07. Effect of Headings and Table of Contents................................. 10
Section 1.08. Successors and Assigns................................................... 10
Section 1.09. Separability Clause...................................................... 10
Section 1.10. Benefits of Indenture.................................................... 11
Section 1.11. Governing Law............................................................ 11
Section 1.12. Legal Holidays........................................................... 11
Section 1.13. No Security Interest Created............................................. 11
Section 1.14. Liability Solely Corporate............................................... 11
ARTICLE TWO
DEBT SECURITY FORMS...................................................... 12
Section 2.01. Forms Generally.......................................................... 12
Section 2.02. Form of Trustee's Certificate of Authentication.......................... 12
Section 2.03. Securities in Global Form................................................ 12
ARTICLE THREE
THE DEBT SECURITIES...................................................... 13
Section 3.01. Amount Unlimited; Issuable in Series..................................... 13
Section 3.02. Denominations............................................................ 16
Section 3.03. Execution, Authentication, Delivery and Dating........................... 16
Temporary Debt Securities; Exchange of Temporary Global Notes for
Definitive Bearer Securities; Global Notes Representing Registered
Section 3.04. Securities............................................................... 18
Section 3.05. Registration, Transfer and Exchange...................................... 22
Section 3.06. Mutilated, Destroyed, Lost and Stolen Debt Securities.................... 24
Section 3.07. Payment of Interest; Interest Rights Preserved........................... 24
Section 3.08. Cancellation............................................................. 26
Section 3.09. Computation of Interest.................................................. 26
Section 3.10. Currency of Payments in Respect of Debt Securities....................... 26
Section 3.11. Judgments................................................................ 29
Section 3.12. CUSIP Numbers............................................................ 29
ARTICLE FOUR
SATISFACTION AND DISCHARGE............................................... 29
Section 4.01. Satisfaction and Discharge of Indenture.................................. 29
Section 4.02. Application of Trust Money............................................... 31
ARTICLE FIVE
REMEDIES................................................................. 31
Section 5.01. Events of Default........................................................ 31
Section 5.02. Acceleration of Maturity; Rescission and Annulment....................... 32
Section 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee.......... 33
Section 5.04. Trustee May File Proofs of Claim......................................... 33
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PAGE
Section 5.05. Trustee May Enforce Claims Without Possession of Debt Securities......... 34
Section 5.06. Application of Money Collected........................................... 34
Section 5.07. Limitation on Suits...................................................... 34
Unconditional Right of Holders to Receive Principal, Premium and
Section 5.08. Interest................................................................. 35
Section 5.09. Restoration of Rights and Remedies....................................... 35
Section 5.10. Rights and Remedies Cumulative........................................... 35
Section 5.11. Delay or Omission Not Waiver............................................. 35
Section 5.12. Control by Holders....................................................... 36
Section 5.13. Waiver of Past Defaults.................................................. 36
Section 5.14. Undertaking for Costs.................................................... 36
Section 5.15. Waiver of Stay or Extension Laws......................................... 36
ARTICLE SIX
THE TRUSTEE.............................................................. 37
Section 6.01. Certain Duties and Responsibilities...................................... 37
Section 6.02. Notice of Defaults....................................................... 37
Section 6.03. Certain Rights of Trustee................................................ 38
Section 6.04. Not Responsible for Recitals or Issuance of Debt Securities.............. 39
Section 6.05. May Hold Debt Securities................................................. 39
Section 6.06. Money Held in Trust...................................................... 39
Section 6.07. Compensation and Reimbursement........................................... 39
Section 6.08. Disqualification; Conflicting Interests.................................. 40
Section 6.09. Corporate Trustee Required; Eligibility.................................. 41
Section 6.10. Resignation and Removal; Appointment of Successor........................ 41
Section 6.11. Acceptance of Appointment by Successor................................... 42
Section 6.12. Merger, Conversion, Consolidation or Succession to Business.............. 43
Section 6.13. Preferential Collection of Claims Against Company........................ 43
Section 6.14. Appointment of Authenticating Agent...................................... 44
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY........................ 45
Section 7.01. Company to Furnish Trustee Names and Addresses of Holders................ 45
Section 7.02. Preservation of Information; Communication to Holders.................... 45
Section 7.03. Reports by Trustee....................................................... 46
Section 7.04. Reports by Company....................................................... 47
ARTICLE EIGHT
CONCERNING THE HOLDERS................................................... 47
Section 8.01. Acts of Holders.......................................................... 47
Section 8.02. Proof of Ownership; Proof of Execution of Instruments by Holders......... 47
Section 8.03. Persons Deemed Owners.................................................... 48
Section 8.04. Revocation of Consents; Future Holders Bound............................. 48
ARTICLE NINE
HOLDERS' MEETINGS........................................................ 49
Section 9.01. Purposes of Meetings..................................................... 49
Section 9.02. Call of Meetings by Trustee.............................................. 49
Section 9.03. Call of Meetings by Company or Holders................................... 49
Section 9.04. Qualifications for Voting................................................ 49
Section 9.05. Quorum; Regulations...................................................... 50
Section 9.06. Voting................................................................... 51
Section 9.07. No Delay of Rights by Meeting............................................ 51
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PAGE
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE..................... 51
Section 10.01. Company May Consolidate, etc., Only on Certain Terms..................... 51
Section 10.02. Successor Corporation Substituted........................................ 52
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES.................................................. 52
Section 11.01. Supplemental Indentures Without Consent of Holders....................... 52
Section 11.02. Supplemental Indentures With Consent of Holders.......................... 53
Section 11.03. Execution of Supplemental Indentures..................................... 54
Section 11.04. Effect of Supplemental Indentures........................................ 54
Section 11.05. Conformity with Trust Indenture Act...................................... 54
Section 11.06. Reference in Debt Securities to Supplemental Indentures.................. 54
Section 11.07. Notice of Supplemental Indenture......................................... 54
ARTICLE TWELVE
COVENANTS................................................................ 55
Section 12.01. Payment of Principal, Premium and Interest............................... 55
Section 12.02. Officer's Certificate as to Default...................................... 55
Section 12.03. Maintenance of Office or Agency.......................................... 55
Section 12.04. Money for Debt Securities; Payments to Be Held in Trust.................. 56
Section 12.05. Corporate Existence...................................................... 57
Section 12.06. Purchase of Debt Securities by Company................................... 57
Section 12.07. Limitation on Liens...................................................... 57
Section 12.08. Limitation on Sale and Leaseback Transactions............................ 59
Section 12.09. Waiver of Certain Covenants.............................................. 59
ARTICLE THIRTEEN
REDEMPTION OF DEBT SECURITIES............................................ 59
Section 13.01. Applicability of Article................................................. 59
Section 13.02. Election to Redeem; Notice to Trustee.................................... 60
Section 13.03. Selection by Trustee of Debt Securities to Be Redeemed................... 60
Section 13.04. Notice of Redemption..................................................... 60
Section 13.05. Deposit of Redemption Price.............................................. 61
Section 13.06. Debt Securities Payable on Redemption Date............................... 61
Section 13.07. Debt Securities Redeemed in Part......................................... 62
ARTICLE FOURTEEN
SINKING FUNDS............................................................ 62
Section 14.01. Applicability of Article................................................. 62
Section 14.02. Satisfaction of Mandatory Sinking Fund Payments with Debt Securities..... 62
Section 14.03. Redemption of Debt Securities for Sinking Fund........................... 63
ARTICLE FIFTEEN
DEFEASANCE............................................................... 64
Section 15.01. Applicability of Article................................................. 64
Section 15.02. Defeasance Upon Deposit of Moneys or U.S. Government Obligations......... 64
Section 15.03. Deposited Moneys and U.S. Government Obligations to Be Held in Trust..... 65
Section 15.04. Repayment to Company..................................................... 66
Section 15.05. FurtherAssurances........................................................ 66
Section 15.06. Reinstatement............................................................ 66
-iii-
5
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND INDENTURE, DATED
AS OF AUGUST , 1995
INDENTURE
TRUST INDENTURE ACT SECTION SECTION
sec.310 (a)(1)................................................................. 6.09
(a)(2)................................................................. 6.09
(a)(3)................................................................. Not Applicable
(a)(4)................................................................. Not Applicable
(a)(5)................................................................. 6.09
(b).................................................................... 6.08, 6.10
(c).................................................................... Not Applicable
sec.311 (a).................................................................... 6.13
(b).................................................................... 6.13
(c).................................................................... Not Applicable
sec.312 (a).................................................................... 7.01, 7.02(a)
(b).................................................................... 7.02(b)
(c).................................................................... 7.02(c)
sec.313 (a).................................................................... 7.03(a)
(b).................................................................... 7.03(a)
(c).................................................................... 7.03(a)
(d).................................................................... 7.03(b)
sec.314 (a).................................................................... 7.04, 12.02
(b).................................................................... Not Applicable
(c)(1)................................................................. 1.02
(c)(2)................................................................. 1.02
(c)(3)................................................................. Not Applicable
(d).................................................................... Not Applicable
(e).................................................................... 1.02
sec.315 (a).................................................................... 6.01(a),
6.01(c)
(b).................................................................... 6.02,
7.03(a)
(c).................................................................... 6.01(b)
(d)(1)................................................................. 6.01(a)
(d)(2)................................................................. 6.01(c)(2)
(d)(3)................................................................. 6.01(c)(3)
(e).................................................................... 5.14
sec.316 (a)(1)(A).............................................................. 5.02, 5.12
(a)(1)(B).............................................................. 5.13
(a)(2)................................................................. Not Applicable
(b).................................................................... 5.08
(c).................................................................... Not Applicable
sec.317 (a)(1)................................................................. 5.03
(a)(2)................................................................. 5.04
(b).................................................................... 12.04
sec.318 ....................................................................... 1.06
------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
-iv-
6
INDENTURE dated as of August , 1995, between HUBBELL INCORPORATED, a
Connecticut corporation (hereinafter called the "Company"), having its principal
executive office at 584 Derby Milford Road, Orange, Connecticut 06477-4024, and
CHEMICAL BANK, a New York banking corporation (hereinafter called the
"Trustee"), having its Corporate Trust Office at 450 West 33rd St., New York,
New York 10001.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its senior unsecured
debt securities, consisting of debentures, notes, bonds and/or other unsecured
evidences of indebtedness (herein generally called the "Debt Securities"), to be
issued in one or more series, as in this Indenture provided.
All things necessary have been done to make this Indenture a valid
agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of Debt
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of Debt Securities of any series,
as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.01. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in
this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to
them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles,
and, except as otherwise herein expressly provided, the term "generally
accepted accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are generally
accepted in the United States of America at the date of such computation; and
(4) 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.
Certain terms, used principally in Article Three or Article Six, are defined in
those respective Articles.
"Act" when used with respect to any Holder, has the meaning specified in
Section 8.01.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
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"Affiliated Corporation" means any corporation which is controlled by the
Company but which is not a Subsidiary of the Company pursuant to the
definition of the term "Subsidiary".
"Attributable Debt" means, with respect to a Sale and Leaseback Transaction
with respect to any Principal Property, the lesser of: (a) the fair market
value of such property (as determined in good faith by the Board of
Directors); or (b) the present value of the total net amount of rent required
to be paid under such lease during the remaining term thereof (including any
period for which such lease has been extended and excluding any unexercised
renewal or other extension options exercisable by the lessee, and excluding
amounts on account of maintenance and repairs, services, taxes and similar
charges and contingent rents), discounted at the rate of interest set forth or
implicit in the terms of such lease (or, if not practicable to determine such
rate, the weighted average interest rate per annum borne by the Debt
Securities of the applicable series then Outstanding) compounded
semi-annually. In the case of any lease which is terminable by the lessee upon
the payment of a penalty, such net amount shall be the lesser of the net
amount determined assuming termination upon the first date such lease may be
terminated (in which case the net amount shall also include the amount of the
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) or the
net amount determined assuming no such termination.
"Authenticating Agent" has the meaning specified in Section 6.14.
"Authorized Newspaper" means a newspaper in an official language of the
country of publication customarily published at least once a day, and
customarily published for at least five days in each calendar week, and of
general circulation in the place in connection with which the term is used or
in the financial community of such city. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may
be made in the same or in different newspapers in the same place meeting the
foregoing requirements and in each case on any Business Day in such place.
"Bearer Security" means any Debt Security (whether or not interest thereon
is evidenced by Coupons), in the form established pursuant to Section 2.01,
which is payable to bearer (including any Global Note payable to bearer) and
title to which passes by delivery only, but does not include any Coupons
appertaining to such Debt Security.
"Board of Directors" means either the board of directors of the Company, or
any committee of that board duly authorized to act hereunder or any director
or directors and/or officer or officers of the Company to whom that board or
committee shall have delegated its authority.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the
Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" when used with respect to any Place of Payment or any other
particular location referred to in this Indenture or in the Debt Securities
means any day which is not a Saturday, a Sunday or a legal holiday or a day on
which banking institutions or trust companies in that Place of Payment or
other location or, in each case, the city in which the Corporate Trust Office
is located, are authorized or obligated by law to close, except as otherwise
specified pursuant to Section 3.01.
"CEDEL" means Cedel, S.A.
"Code" means the Internal Revenue Code of 1986, as amended and as in effect
on the date hereof.
"Common Depositary" has the meaning specified in Section 3.04(b).
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as
amended, or if at any time after the execution of this instrument 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.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument unless and until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
2
8
"Company Request" and "Company Order" mean, respectively, a written request
or order signed in the name of the Company by the Chairman, a Vice Chairman,
the President, the Chief Financial Officer or a Vice President and by the
Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller,
the Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
"Component Currency" has the meaning specified in Section 3.10(i).
"Consolidated Net Tangible Assets" at any time, means the excess over
current liabilities of all assets, less goodwill, trademarks, patents, other
like intangibles and the minority interests of others in Subsidiaries, of the
Company and its consolidated Subsidiaries, determined on a consolidated basis
in accordance with generally accepted accounting principles, as of the end of
the most recently completed accounting period of the Company for which
financial information is then available.
"Conversion Date" has the meaning specified in Section 3.10(e).
"Conversion Event" means the cessation of the use of (i) a Foreign Currency
both by the government of the country which issued such Currency and for the
settlement of transactions by public institutions of or within the
international banking community, (ii) the ECU both within the European
Monetary System and for the settlement of transactions by public institutions
of or within the European Communities or (iii) any Currency unit other than
the ECU for the purposes for which it was established.
"Corporate Trust Office" means the principal corporate trust office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date of execution of this instrument is
located at 450 West 33rd Street, 15th Floor, New York, New York 10001.
"Corporation" includes corporations, associations, companies (including
joint stock companies and limited liability companies) and business trusts.
"Coupon" means any interest coupon appertaining to any Debt Security.
"Coupon Security" means any Bearer Security authenticated and delivered with
one or more Coupons appertaining thereto.
"Currency" means Dollars or Foreign Currency.
"Currency Determination Agent" means the New York Clearing House bank, if
any, from time to time selected by the Company pursuant to Section 3.01;
provided that such agent shall accept such appointment in writing and the
terms of such appointment shall be acceptable to the Company and shall, in the
opinion of the Company and the Trustee at the time of such appointment,
require such agent to make the determinations required by this Indenture by a
method consistent with the method provided in this Indenture for the making of
such decision or determination.
"Currency unit" means a composite currency or currency unit the value of
which is determined by reference to the value of the currencies of any group
of countries.
"Debt Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Debt Securities (including any
Global Notes) authenticated and delivered under and pursuant to this
Indenture.
"Default Amount" has the meaning specified in Section 5.02.
"Defaulted Interest" has the meaning specified in Section 3.07(c).
"Discharged" has the meaning specified in Section 15.02.
"Discount Security" means any Debt Security which is issued with "original
issue discount" within the meaning of Section 1273(a) of the Code and the
regulations thereunder.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States as at the time of payment is legal tender for
the payment of public and private debts.
"Dollar Equivalent of the Currency unit" has the meaning specified in
Section 3.10(h).
"Dollar Equivalent of the Foreign Currency" has the meaning specified in
Section 3.10(g).
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9
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 3.10(i).
"Euro-clear Operator" means Morgan Guaranty Trust Company of New York,
Brussels office, or its successor as operator of the Euro-clear System.
"European Communities" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System established by
the Resolution of December 5, 1978 of the Council of the European Communities.
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Date" has the meaning specified in Section 3.04(b).
"Exchange Rate Officer's Certificate" means an Officers' Certificate setting
forth (i) the applicable Market Exchange Rate and (ii) the Dollar, Foreign
Currency or Currency unit amounts of principal, premium, if any, and any
interest, respectively (on an aggregate basis and on the basis of a Debt
Security having the lowest denomination principal amount determined in
accordance with Section 3.02 in the relevant Currency or Currency unit),
payable on the basis of such Market Exchange Rate.
"Fixed Rate Security" means a Debt Security which provides for the payment
of interest at a fixed rate.
"Floating Rate Security" means a Debt Security which provides for the
payment of interest at a variable rate determined periodically by reference to
an interest rate index or any other index specified pursuant to Section 3.01.
"Foreign Currency" means a currency issued by the government of any country
other than the United States.
"Funded Debt" means any indebtedness for money borrowed, created, issued,
incurred, assumed or guaranteed which would, in accordance with generally
accepted accounting principles, be classified as long-term debt, but in any
event including all indebtedness for money borrowed, whether secured or
unsecured, maturing more than one year or extendible at the option of the
obligor to a date more than one year, after the date of determination thereof
(excluding any amount thereof included in current liabilities).
"Global Note" means a Registered or Bearer Security evidencing all or part
of a series of Debt Securities, whether in temporary or permanent form.
"Government" has the meaning specified in Section 12.07(d).
"Holder" means, with respect to a Registered Security, the Registered
Holder, and with respect to a Bearer Security or a Coupon, the bearer thereof.
"Indenture" means this instrument as originally executed, or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and, unless
the context otherwise requires, shall include the terms of a particular series
of Debt Securities as established pursuant to Section 3.01.
"Interest," when used with respect to a Discount Security which by its terms
bears interest only after Maturity, means interest payable after Maturity,
and, when used with respect to a Bearer Security, includes any additional
amounts payable on such Bearer Security, if so provided pursuant to Section
3.01.
"Interest Payment Date" with respect to any Debt Security means the Stated
Maturity of an installment of interest on such Debt Security.
"Market Exchange Rate" means (i) for any conversion involving a Currency
unit on the one hand and Dollars or any Foreign Currency on the other, the
exchange rate between the relevant Currency unit and Dollars or such Foreign
Currency calculated by the method specified pursuant to Section 3.01 for the
4
10
securities of the relevant series, (ii) for any conversion of Dollars into any
Foreign Currency, the noon (New York City time) buying rate for such Foreign
Currency for cable transfers quoted in New York City as certified for customs
purposes by the Federal Reserve Bank of New York, and (iii) for any conversion
of one Foreign Currency into Dollars or another Foreign Currency, the spot
rate at noon local time in the relevant market at which, in accordance with
normal banking procedures, the Dollars or Foreign Currency into which
conversion is being made could be purchased with the Foreign Currency from
which conversion is being made from major banks located in New York City or if
such Dollars or Foreign Currency could not be so purchased in New York City,
in London or, if such Dollars or Foreign Currency could not be so purchased in
London, in any other principal market for Dollars or such purchased Foreign
Currency designated by the Currency Determination Agent. In the event of the
unavailability of any of the exchange rates provided for in the foregoing
clauses (i), (ii) and (iii), the Currency Determination Agent shall use, in
its sole discretion and without liability on its part, such quotation of the
Federal Reserve Bank of New York as of the most recent available date, or
quotations from one or more major banks in New York City, London or other
principal market for such Currency or Currency unit in question, or such other
quotations as the Currency Determination Agent shall deem appropriate. Unless
otherwise specified by the Currency Determination Agent, if there is more than
one market for dealing in any Currency or Currency unit by reason of foreign
exchange regulations or otherwise, the market to be used in respect of such
Currency or Currency unit shall be that upon which a nonresident issuer of
securities designated in such Currency or Currency unit would purchase such
Currency or Currency unit in order to make payments in respect of such
securities.
"Maturity" when used with respect to any Debt Security means the date on
which the principal of such Debt Security or an installment of principal
thereon becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, call for redemption,
repayment at the option of the Holder thereof or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman, a Vice
Chairman, the President, the Chief Financial Officer or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Chief Accounting Officer, the
Secretary or an Assistant Secretary of the Company and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
to the Company (including an employee of the Company) and who shall be
reasonably satisfactory to the Trustee, which is delivered to the Trustee.
"Outstanding" when used with respect to Debt Securities, means, as of the
date of determination, all Debt Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Debt Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Debt Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company or its Affiliates) in trust or set aside and
segregated in trust by the Company or an Affiliate of the Company (if the
Company or an Affiliate of the Company shall act as the Paying Agent) for the
Holders of such Debt Securities and any Coupons thereto pertaining; provided,
however, that if such Debt Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(iii) Debt Securities which have been paid pursuant to Section 3.06 or in
exchange for or in lieu of which other Debt Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Debt Securities
in respect of which there shall have been presented to the Trustee proof
reasonably satisfactory to it that such Debt Securities are held by a bona
fide purchaser in whose hands such Debt Securities are valid obligations of
the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Debt Securities Outstanding have performed any Act
hereunder, Debt Securities owned by the Company or any other obligor upon the
Debt Securities or any Affiliate of the Company or of such other obligor shall
be disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be
5
11
protected in relying upon any such Act, only Debt Securities which the Trustee
knows to be so owned shall be so disregarded. Debt Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right to act with
respect to such Debt Securities and that the pledgee is not the Company or any
other obligor upon the Debt Securities or any Affiliate of the Company or of
such other obligor. In determining whether the Holders of the requisite
principal amount of Outstanding Debt Securities have performed any Act
hereunder, the principal amount of a Discount Security that shall be deemed to
be Outstanding for such purpose 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 5.02
and the principal amount of a Debt Security denominated in a Foreign Currency
that shall be deemed to be Outstanding for such purpose shall be the amount
calculated pursuant to Section 3.10(k).
"Overdue Rate" when used with respect to any series of the Debt Securities,
means the rate designated as such in or pursuant to the Board Resolution or
the supplemental indenture, as the case may be, relating to such series as
contemplated by Section 3.01.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Debt Securities on
behalf of the Company.
"Periodic Offering" means an offering of Debt Securities of a series from
time to time the specific terms of which Debt Securities, including, without
limitation, the rate or rates of interest or formula for determining the rate
or rates of interest thereon, if any, the Stated Maturity or Maturities
thereof and the redemption provisions, if any, with respect thereto, are to be
determined by the Company upon the issuance of such Debt Securities.
"permanent Global Note" shall have the meaning given such term in Section
3.04(b).
"Person" means any individual, Corporation, partnership, joint venture,
association, trust, estate, unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Payment" when used with respect to the Debt Securities of any
series means the place or places where the principal of (and premium, if any)
and interest on the Debt Securities of that series are payable as specified
pursuant to Section 3.01.
"Predecessor Security" of any particular Debt Security means every previous
Debt Security evidencing all or a portion of the same debt as that evidenced
by such particular Debt Security; and, for the purposes of this definition,
any Debt Security authenticated and delivered under Section 3.06 in lieu of a
mutilated, lost, destroyed or stolen Debt Security or a Debt Security to which
a mutilated, lost, destroyed or stolen Coupon appertains shall be deemed to
evidence the same debt as the mutilated, lost, destroyed or stolen Debt
Security or the Debt Security to which the mutilated, lost, destroyed or
stolen Coupon appertains, as the case may be.
"Principal Property" means any parcel of real property and related fixtures
or improvements owned by the Company or any Restricted Subsidiary and located
in the United States, the aggregate book value of which, less accumulated
depreciation, on the date of determination exceeds $5 million, other than any
such real property and related fixtures or improvements which, as determined
in good faith by the Board of Directors, is not of material importance to the
total business conducted by the Company and its Subsidiaries, taken as a
whole.
"Redemption Date" means the date fixed for redemption of any Debt Security
pursuant to this Indenture which, in the case of a Floating Rate Security,
unless otherwise specified pursuant to Section 3.01, shall be an Interest
Payment Date only.
"Redemption Price" means, in the case of a Discount Security, the amount of
the principal thereof that would be due and payable as of the Redemption Date
upon a declaration of acceleration of the Maturity thereof pursuant to Section
5.02, and in the case of any other Debt Security, the principal amount
thereof, plus, in each case, premium, if any, and accrued and unpaid interest,
if any, to the Redemption Date.
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"Registered Holder" means the Person in whose name a Registered Security is
registered in the Security Register.
"Registered Security" means any Debt Security in the form established
pursuant to Section 2.01 which is registered as to principal and interest in
the Security Register.
"Regular Record Date" for the interest payable on the Registered Securities
of any series on any Interest Payment Date means the date specified for such
purpose pursuant to Section 3.01.
"Responsible Officer" when used with respect to the Trustee means any
officer of the Trustee with direct responsibility for the administration of
this Indenture and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means, with respect to the Company, any "significant
subsidiary" as such term is defined in Rule 1-02(w) of Regulation S-X under
the Securities Act of 1933, as amended (the "Securities Act"); provided,
however, that a Subsidiary shall be considered not to be a Restricted
Subsidiary if (a) it is principally engaged in the business of finance,
banking, credit, leasing, insurance, investments, financial services or other
similar operations, or any combination thereof; (b) it is principally engaged
in financing the Company's operations outside the continental United States of
America; (c) substantially all of its assets consist of the capital stock of
one or more of the Subsidiaries engaged in the operations described in the
preceding clause (a) or (b) or any combination thereof; (d) a majority of its
voting stock shall at the time be owned directly or indirectly by one or more
Subsidiaries which are not Restricted Subsidiaries; or (e) (i) it has issued
and sold either (x) equity securities with aggregate net proceeds in excess of
$10,000,000 or (y) debt securities aggregating $10,000,000 or more in
principal amount, or (ii) the Company has sold equity securities of such
Subsidiary with aggregate net proceeds to the Company in excess of
$10,000,000; provided, however, that the securities referred to in this clause
(e) were issued under a registration statement filed with the Commission
pursuant to the provisions of Section 6 of the Securities Act.
"Sale and Leaseback Transaction" means any arrangement with any Person
providing for the leasing by the Company or any Restricted Subsidiary of any
Principal Property which has been or is to be sold or transferred by the
Company or such Restricted Subsidiary to such Person; provided, however, that
"Sale and Leaseback Transaction" shall not include such arrangements that were
existing on the date of this Indenture or at the time any Person owning a
Principal Property shall become a Restricted Subsidiary.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 3.05(a).
"Special Record Date" for the payment of any Defaulted Interest means a date
fixed by the Trustee pursuant to Section 3.07(c).
"Specified Amount" has the meaning specified in Section 3.10(i).
"Stated Maturity" when used with respect to any Debt Security or any
installment of principal thereof, premium thereon or interest thereon means
the date specified in such Debt Security or the Coupon, if any, representing
such installment of interest, as the date on which the principal of such Debt
Security or such installment of principal, premium or interest is due and
payable.
"Subsidiary" means any Corporation of which at least a majority of the
outstanding stock having by the terms thereof ordinary voting power to elect a
majority of the directors of such Corporation, irrespective of whether or not,
at the time, stock of any other class or classes of such Corporation shall
have or might have voting power by reason of the happening of any contingency,
is at the time, directly or indirectly, owned or controlled by the Company or
by one or more Subsidiaries thereof, or by the Company and one or more
Subsidiaries thereof.
"temporary Global Note" shall have the meaning given such term in Section
3.04(b).
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"Trade Payables" means accounts payable or any other indebtedness or
monetary obligations to trade creditors created or assumed in the ordinary
course of business in connection with the obtaining of materials or services.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument unless and until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person, "Trustee" as used with
respect to the Debt Securities of any series shall mean the Trustee with
respect to Debt Securities of such series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as amended and
as in force at the date as of which this instrument was executed, except as
provided in Section 11.05.
"United States" means the United States of America (including the States and
the District of Columbia), and its possessions, which include Puerto Rico, the
U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern
Mariana Islands.
"U.S. Depositary" means a clearing agency registered under the Securities
Exchange Act of 1934, as amended, or any successor thereto, which shall in
either case be designated by the Company pursuant to Section 3.01 until a
successor U.S. Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "U.S. Depositary" shall mean or
include each Person who is then a U.S. Depositary hereunder, and if at any
time there is more than one such Person, "U.S. Depositary" as used with
respect to the Debt Securities of any series shall mean the U.S. Depositary
with respect to the Debt Securities of that series.
"U.S. Government Obligations" has the meaning specified in Section 15.02.
"U.S. Person" means a citizen or resident of the United States, a
Corporation, partnership or other entity created or organized in or under
the laws of the United States, or an estate or trust the income of which is
subject to United States Federal income taxation regardless of its source.
"Valuation Date" has the meaning specified in Section 3.10(d).
"Vice President" includes with respect to the Company any Vice President
of the Company, whether or not designated by a number or word or words added
before or after the title "Vice President".
"Wholly-Owned Subsidiary" means a Subsidiary of which all of the
outstanding voting stock (other than directors' qualifying shares) is at
the time, directly or indirectly, owned by the Company, or by one or more
Wholly-Owned Subsidiaries of the Company or by the Company and one or more
Wholly-Owned Subsidiaries of the Company.
Section 1.02. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate, in form and substance reasonably satisfactory to the
Trustee, stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel, in form and substance reasonably satisfactory to the Trustee,
stating that in the opinion of such counsel all such conditions precedent, if
any, have been complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically required by
any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than certificates provided
pursuant to Section 12.02) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
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(2) 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;
(3) a statement that, in the opinion of each such individual, 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
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any certificate or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations
by, an officer or officers of the Company with respect to such factual matters,
unless such counsel knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representations with respect to such matters
are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
The delivery to the Trustee (or any agent specified for the purpose
pursuant to Section 3.01) by the Euro-clear Operator or CEDEL of any certificate
substantially in the form of Exhibit B hereto may be relied upon by the Company
and the Trustee (and any such agent) as conclusive evidence that a corresponding
certificate or certificates has or have been delivered to the Euro-clear
Operator or CEDEL, as the case may be, pursuant to the terms of this Indenture.
Section 1.04. Notices, etc., to Trustee and Company.
Any Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or filed in writing and delivered by mail or by hand
delivery or by telecopy (confirmed in writing), and if mailed, then by
first-class postage prepaid or airmail postage prepaid if sent from outside
the United States, to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or filed in writing and delivered by mail or by hand
delivery or by telecopy (confirmed in writing), and if mailed, then by
first-class postage prepaid or airmail postage prepaid if sent from outside
the United States, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this Indenture, to the
attention of its Treasurer, or at any other address previously furnished in
writing to the Trustee by the Company.
Any such Act or other document shall be in the English language, except
that any published notice may be in an official language of the country of
publication.
Section 1.05. Notice to Holders; Waiver.
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When this Indenture provides for notice to Holders of any event, (1) such
notice shall be sufficiently given to Registered Holders (unless otherwise
herein expressly provided) in writing and delivered by mail or by hand delivery
or by telecopy (confirmed in writing), and if mailed, then by first-class
postage prepaid or airmail postage prepaid if sent from outside the United
States, to such Registered Holders as their names and addresses appear in the
Security Register, within the time prescribed, and (2) such notice shall be
sufficiently given to Holders of Bearer Securities or Coupons (unless otherwise
herein expressly provided) if published at least twice in an Authorized
Newspaper or Newspapers designated by and at the expense of the Company in The
City of New York and, if Debt Securities of such series are then listed on The
Stock Exchange of the United Kingdom and the Republic of Ireland or the
Luxembourg Stock Exchange or any other stock exchange located outside the United
States and such stock exchange shall so require, in a daily newspaper in London
or Luxembourg or in such other city or cities specified pursuant to Section 3.01
or in the relevant Debt Security on Business Days, the first such publication to
be not earlier than the earliest date and not later than the latest date
prescribed for the giving of such notice; provided, however, that, in any case,
any notice to Holders of Floating Rate Securities regarding the determination
of a periodic rate of interest, if such notice is required pursuant to
Section 3.01, shall be sufficiently given if given in the manner specified
pursuant to Section 3.01.
In the event of suspension of regular mail service or by reason of any
other cause it shall be impracticable to give notice by mail, such notification
as shall be given with the approval of the Trustee shall constitute sufficient
notice for every purpose hereunder.
In the event of suspension of publication of any Authorized Newspapers or
by reason of any other cause it shall be impracticable to give notice by
publication, such notification as shall be given with the approval of the
Trustee shall constitute sufficient notice for every purpose hereunder.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance on such waiver. In any case where notice to Holders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders, and any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given. In any case
where notice to Holders is given by publication, any defect in any notice so
published as to any particular Holder shall not affect the sufficiency of such
notice with respect to other Holders, and any notice which is published in the
manner herein provided shall be conclusively presumed to have been duly given.
Furthermore, nothing in this Indenture shall prohibit the Holders from
communicating with each other with respect to their rights under this Indenture
pursuant to Section 312(b) of the Trust Indenture Act. The Company, the Trustee,
the Security Registrar and any other Person shall be entitled to the protection
of Section 312(c) of the Trust Indenture Act.
Section 1.06. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the duties
imposed on any Person by the provisions of Sections 310 to 317, inclusive, and
Section 318(c) of the Trust Indenture Act, such duties imposed by the Trust
Indenture Act shall control.
Section 1.07. Effect of Headings and Table of Contents.
The Article and Section headings herein and in the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 1.08. Successors and Assigns.
All covenants and agreements in this Indenture by the parties hereto shall
bind their respective successors and assigns and inure to the benefit of their
permitted successors and assigns, whether so expressed or not.
Section 1.09. Separability Clause.
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In case any provision in this Indenture or in the Debt Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.10. Benefits of Indenture.
Nothing in this Indenture or in the Debt Securities, express or implied,
shall give to any Person, other than the parties hereto, any Security Registrar,
any Paying Agent and their successors hereunder, and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
Section 1.11. Governing Law.
This Indenture, the Debt Securities and the Coupons for all purposes shall
be governed by and construed in accordance with the laws of the State of New
York.
Section 1.12. Legal Holidays.
Unless otherwise specified pursuant to Section 3.01 or in any Debt
Security, in any case where any Interest Payment Date, Redemption Date, sinking
fund payment date or Stated Maturity or Maturity of any Debt Security of any
series shall not be a Business Day at any Place of Payment for the Debt
Securities of that series, then (notwithstanding any other provision of this
Indenture or of the Debt Securities or Coupons) payment of principal (and
premium, if any) or interest need not be made at such Place of Payment on such
date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date,
Redemption Date, sinking fund payment date or at the Stated Maturity or the
Maturity, as the case may be, and no interest shall accrue on the amount so
payable for the period from and after such Interest Payment Date, Redemption
Date, sinking fund payment date or Stated Maturity or Maturity, as the case may
be, to such Business Day if such payment is made or duly provided for on such
Business Day.
Section 1.13. No Security Interest Created.
Nothing in this Indenture or in the Debt Securities or Coupons, express or
implied, shall be construed to constitute a security interest under the Uniform
Commercial Code or similar legislation or real property laws, as now or
hereafter enacted and in effect in any jurisdiction where property of the
Company or its Subsidiaries is or may be located.
Section 1.14. Liability Solely Corporate.
No recourse shall be had for the payment of the principal of (or premium,
if any) or the interest on any Debt Securities or Coupons, or any part thereof,
or of the indebtedness represented thereby, or upon any obligation, covenant or
agreement of this Indenture, against any incorporator, or against any
stockholder, officer or director, as such, past, present or future, of the
Company (or any incorporator, stockholder, officer or director of any
predecessor or successor Corporation), either directly or through the Company
(or any such predecessor or successor Corporation), whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly agreed and understood that this
Indenture and all the Debt Securities and Coupons are solely corporate
obligations, and that no personal liability whatsoever shall attach to, or be
incurred by, any such incorporator, stockholder, officer or director, past,
present or future, of the Company (or any incorporator, stockholder, officer or
director of any such predecessor or successor Corporation), either directly or
indirectly through the Company or any such predecessor or successor Corporation,
because of the indebtedness hereby authorized or under or by reason of any of
the obligations, covenants, promises or agreements contained in this Indenture
or in any of the Debt Securities or Coupons or to be implied herefrom or
therefrom; and that any such personal liability is hereby expressly waived and
released as a condition of, and as part of the consideration for, the execution
of this Indenture and the issue of Debt Securities; provided, however, that
nothing herein or in the Debt Securities or Coupons contained shall be taken to
prevent recourse to and the enforcement of the liability, if any, of any
stockholder or subscriber to capital stock upon or in respect of the shares of
capital stock not fully paid.
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ARTICLE TWO
DEBT SECURITY FORMS
Section 2.01. Forms Generally.
The Debt Securities and the Coupons, if any, of each series shall be
substantially in one of the forms (including global form) not inconsistent with
this Indenture established in or pursuant to a Board Resolution or one or more
indentures supplemental hereto, and shall have such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements placed thereon as
the Company may deem appropriate and as are not inconsistent with the provisions
of this Indenture, as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any
securities exchange on which any series of the Debt Securities may be listed, or
to conform to usage, all as determined by the officers executing such Debt
Securities and Coupons, if any, as conclusively evidenced by their execution of
such Debt Securities and Coupons, if any. If the form of a series of Debt
Securities or Coupons if any (or any Global Note), is established in or pursuant
to a Board Resolution, a copy of such Board Resolution shall be delivered to the
Trustee, together with an Officers' Certificate setting forth the form of such
series, at or prior to the delivery of the Company Order contemplated by Section
3.03 for the authentication and delivery of such Debt Securities (or any such
Global Note) or Coupons, if any.
Unless otherwise specified as contemplated by Section 3.01, Debt Securities
in bearer form (other than in global form) shall have Coupons attached.
The definitive Debt Securities and Coupons, if any, of each series shall be
printed, lithographed or engraved or produced by any combination of these
methods on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Debt Securities and Coupons, if any,
as conclusively evidenced by their execution of such Debt Securities and
Coupons, if any.
Section 2.02. Form of Trustee's Certificate of Authentication.
The form of the Trustee's certificate of authentication to be borne by the
Debt Securities shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the series of Debt Securities issued under the within
mentioned Indenture.
Chemical Bank, as Trustee
By:
Authorized Officer
If at any time there shall be an Authenticating Agent appointed with
respect to any series of Debt Securities, then the Trustee's certificate of
authentication to be borne by the Debt Securities of each such series shall be
substantially as set forth in Section 6.14.
Section 2.03. Securities in Global Form.
If any Debt Security of a series is issuable in global form, the Global
Note so issued may provide, notwithstanding clause (8) of Section 3.01 and the
provisions of Section 3.02, that it shall represent the aggregate amount of
Outstanding Debt Securities from time to time endorsed thereon and may also
provide that the aggregate amount of Outstanding Debt Securities represented
thereby may from time to time be reduced to reflect the amount of Debt
Securities then Outstanding. Any endorsement of a Global Note to reflect the
amount, or any increase or decrease in the amount, of Outstanding Debt
Securities represented thereby shall be made by the Trustee and in such manner
as shall be specified in such Global Note. Any
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instructions by the Company with respect to a Global Note, after its initial
issuance, shall be in the form of an Officers' Certificate or Company Request or
Company Order but need not otherwise comply with Section 1.02.
The provisions of the last sentence of Section 3.03 shall apply to any Debt
Security represented by a Debt Security in global form if such Debt Security was
never issued and sold by the Company and the Company delivers to the Trustee or
the Security Registrar the Debt Security in global form together with written
instructions (which need not comply with Section 1.02 and need not be
accompanied by an Opinion of Counsel) with respect to the reduction in the
principal amount of Debt Securities represented thereby, together with the
written statement contemplated by the last sentence of Section 3.03.
Global Notes may be issued in either registered or bearer form and in
either temporary or permanent form. Permanent Global Notes will be issued in
definitive form.
ARTICLE THREE
THE DEBT SECURITIES
Section 3.01. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued from time to time in one or more series
and shall rank senior to all indebtedness of the Company that by its terms is
subordinated in right of payment. There shall be established in or pursuant to
one or more Board Resolutions or pursuant to authority granted by one or more
Board Resolutions and (subject to Section 3.03) set forth in, or determined in a
manner provided in, an Officers' Certificate, or established in one or more
indentures supplemental hereto, prior to the issuance of Debt Securities of any
series:
(1) the title of the Debt Securities of the series (which shall distinguish
the Debt Securities of such series from all other series of Debt Securities);
(2) the limit, if any, upon the aggregate principal amount of the Debt
Securities of the series which may be authenticated and delivered under this
Indenture (except for Debt Securities authenticated and delivered upon transfer
of, or in exchange for, or in lieu of, other Debt Securities of such series
pursuant to Sections 3.04, 3.05, 3.06, 11.06 or 13.07 and except for any Debt
Securities which, pursuant to Section 3.03, are deemed never to have been
authenticated and delivered hereunder);
(3) the date or dates on which or periods during which the Debt Securities
of the series may be issued, and the date or dates (or the method of
determination thereof) on which the principal of (and premium, if any, on) the
Debt Securities of such series are or may be payable;
(4) the rate or rates (or the method of determination thereof) at which the
Debt Securities of the series shall bear interest, if any, and the dates from
which such interest shall accrue; and the Interest Payment Dates on which such
interest shall be payable (or the method of determination thereof), and, in the
case of Registered Securities, the Regular Record Dates for the interest payable
on such Interest Payment Dates and, in the case of Floating Rate Securities, the
notice, if any, to Holders regarding the determination of interest and the
manner of giving such notice and any conditions or contingencies as to the
payment of interest in cash or otherwise, if any;
(5) the place or places where the principal of (and premium, if any) and
interest on Debt Securities of the series shall be payable; the extent to which,
or the manner in which, any interest payable on any Global Note on an Interest
Payment Date will be paid, if other than in the manner provided in Section 3.07;
the extent, if any, to which the provisions of the last sentence of Section
12.01 shall apply to the Debt Securities of the series; and the manner in which
any principal of, or premium, if any, on, any Global Note will be paid, if other
than as set forth elsewhere herein and whether any Global Note shall require any
notation to evidence payment of principal or interest;
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(6) the obligation, if any, of the Company to redeem, repay, purchase or
offer to purchase Debt Securities of the series pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of the Holder
thereof and the period or periods within which or the dates on which, the prices
at which and the terms and conditions upon which Debt Securities of the series
shall be redeemed, repaid, purchased or offered to be purchased, in whole or in
part, pursuant to such obligation;
(7) the right, if any, of the Company to redeem Debt Securities, in whole
or in part, at its option and the period or periods within which, or the date or
dates on which, the price or prices at which, and the terms and conditions upon
which Debt Securities of the series may be so redeemed;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Registered Securities of the series
shall be issuable, and if other than the denomination of $5,000, the
denomination or denominations in which any Bearer Securities of the series shall
be issuable;
(9) whether the Debt Securities of the series are to be issued as Discount
Securities and the amount of discount with which such Debt Securities may be
issued and, if other than the principal amount thereof, the portion of the
principal amount of Debt Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 5.02;
(10) provisions, if any, for the defeasance of the Debt Securities of the
series pursuant to the legal defeasance option (as defined in Section 15.01), or
discharge of certain of the Company's obligations with respect thereto pursuant
to the covenant defeasance option (as defined in Section 15.02);
(11) whether Debt Securities of the series are to be issued as Registered
Securities or Bearer Securities or both, and, if Bearer Securities are issued,
whether Coupons will be attached thereto, whether Bearer Securities of the
series may be exchanged for Registered Securities of the series, as provided in
Section 3.05(b) or otherwise, and the circumstances under which and the place or
places at which any such exchanges, if permitted, may be made;
(12) whether provisions for payment of additional amounts or tax
redemptions shall apply and, if such provisions shall apply, such provisions;
and, if Bearer Securities of the series are to be issued, whether a procedure
other than that set forth in Section 3.04(b) shall apply and, if so, such other
procedure, and if the procedure set forth in Section 3.04(b) shall apply, the
forms of certifications to be delivered under such procedure;
(13) if other than Dollars, the Foreign Currency or Currencies in which
Debt Securities of the series shall be denominated or in which payment of the
principal of (and/or premium, if any) and/or interest on the Debt Securities of
the series may be made, and the particular provisions applicable thereto and, if
applicable, the amount of Debt Securities of the series which entitles the
Holder of a Debt Security of the series or its proxy to one vote for purposes of
Section 9.05;
(14) if the principal of (and premium, if any) or interest on Debt
Securities of the series are to be payable, at the election of the Company or a
Holder thereof, in a Currency other than that in which the Debt Securities are
denominated or payable without such election, in addition to or in lieu of the
provisions of Section 3.10, the period or periods within which and the terms and
conditions upon which such election may be made and the time and the manner of
determining the exchange rate or rates between the Currency or Currencies in
which the Debt Securities are denominated or payable without such election and
the Currency or Currencies in which the Debt Securities are to be paid if such
election is made;
(15) the date as of which any Debt Securities of the series shall be dated,
if other than as set forth in Section 3.03;
(16) if the amount of payments of principal of (and premium, if any) or
interest on the Debt Securities of the series may be determined with reference
to an index, including, but not limited to, an index based on a Currency or
Currencies other than that in which the Debt Securities are denominated or
payable, or any other type of index, the manner in which such amounts shall be
determined;
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(17) if the Debt Securities of the series are denominated or payable
in a Foreign Currency, any other terms concerning the payment of principal
of (and premium, if any) or any interest on such Debt Securities (including
the Currency or Currencies of payment thereof); and whether the provisions
of Section 3.11 are established as terms of the Debt Securities of the
series;
(18) the designation of the original Currency Determination Agent, if
any;
(19) the applicable Overdue Rate, if any;
(20) if the Debt Securities of the series do not bear interest, the
applicable dates for purposes of Section 7.01;
(21) any deletions from, modifications of or additions to any Events
of Default or covenants provided for with respect to Debt Securities of the
series, whether or not such Events of Default or covenants are consistent
with the Events of Default or covenants set forth herein;
(22) if Bearer Securities of the series are to be issued, (x) whether
interest in respect of any portion of a temporary Debt Security in global
form (representing all of the Outstanding Bearer Securities of the series)
payable in respect of any Interest Payment Date prior to the exchange of
such temporary Debt Security for definitive Debt Securities of the series
shall be paid to any clearing organization with respect to the portion of
such temporary Debt Security held for its account and, in such event, the
terms and conditions (including any certification requirements) upon which
any such interest payment received by a clearing organization will be
credited to the Persons entitled to interest payable on such Interest
Payment Date, (y) the terms upon which interests in such temporary Debt
Security in global form may be exchanged for interests in a permanent
Global Note or for definitive Debt Securities of the series and the terms
upon which interests in a permanent Global Note, if any, may be exchanged
for definitive Debt Securities of the series and (z) the cities in which
the Authorized Newspapers designated with respect to such series are
published;
(23) whether the Debt Securities of the series shall be issued in
whole or in part in the form of one or more Global Notes and, in such case,
the U.S. Depositary or any Common Depositary for such Global Note or Notes;
and if the Debt Securities of the series are issuable only as Registered
Securities, the manner in which and the circumstances under which Global
Notes representing Debt Securities of the series may be exchanged for
Registered Securities in definitive form, if other than, or in addition to,
the manner and circumstances specified in Section 3.04(c);
(24) the designation, if any, of the U.S. Depositary; and the
designation of any trustees (other than the Trustee), depositaries,
Authenticating Agents, Paying Agents, Security Registrars, or any other
agents with respect to the Debt Securities of the series;
(25) if the Debt Securities of the series are to be issuable in
definitive form (whether upon original issuance or upon exchange of a
temporary Debt Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, the
form and terms of such certificates, documents or conditions;
(26) the Person to whom any interest on any Registered Security of the
series shall be payable, if other than the Person in whose name that
Registered Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest, the
manner in which, or the Person to whom, any interest on any Bearer Security
of the series shall be payable, if otherwise than upon the presentation and
surrender of the Coupons, if any, appertaining thereto as they severally
mature, the extent to which, or the manner in which, any interest payable
on a temporary Debt Security in global form on an Interest Payment Date
will be paid if other than in any manner provided in Section 3.04 and the
extent to which, or the manner in which, any interest payable on a
permanent Debt Security in global form on an Interest Payment Date will be
paid if other than in the manner provided in Section 3.07;
(27) the provisions, if any, granting special rights to the Holders
of the Debt Securities of the series upon the occurrence of such events as
may be specified; and
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(28) any other terms or conditions relating to the series (which other
terms shall not be inconsistent with the requirements of the Trust
Indenture Act and the provisions of this Indenture).
All Debt Securities of any one series and Coupons, if any, shall be
substantially identical to all other Debt Securities of such series except as to
denomination, rate of interest, Stated Maturity and the date from which
interest, if any, shall accrue, which, as set forth above, may be determined by
the Company from time to time as to Debt Securities of a series if so provided
in or established pursuant to the authority granted in a Board Resolution or in
any such indenture supplemental hereto, and except as may otherwise be provided
in or pursuant to such Board Resolution and (subject to Section 3.03) set forth
in such Officers' Certificate, or in any such indenture supplemental hereto. All
Debt Securities of any one series need not be issued at the same time, and
unless otherwise provided, a series may be reopened for issuance of additional
Debt Securities of such series.
If any of the terms of a series of Debt Securities is established in or
pursuant to one or more Board Resolutions, such Board Resolutions shall be
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
With respect to Debt Securities of a series offered in a Periodic Offering,
the Board Resolution (or action taken pursuant thereto), Officer's Certificate
or supplemental indenture referred to above may provide general terms or
parameters for Debt Securities of such series and provide either that the
specific terms of particular Debt Securities of such series shall be specified
in a Company Order or that such terms shall be determined by the Company in
accordance with other procedures specified in a Company Order as contemplated by
the third paragraph of Section 3.03.
Section 3.02. Denominations.
Unless otherwise provided as contemplated by Section 3.01, with respect to
any series of Debt Securities, any Registered Securities of a series, other than
Registered Securities issued in global form (which may be of any denomination),
shall be issuable in denominations of $1,000 and any integral multiple thereof
and any Bearer Securities of a series, other than Bearer Securities issued in
global form (which may be of any denomination), shall be issuable in the
denomination of $5,000. Unless otherwise provided as contemplated by Section
3.01, the Debt Securities of any series shall be payable in Dollars.
Section 3.03. Execution, Authentication, Delivery and Dating.
The Debt Securities and the Coupons, if any, of any series shall be
executed on behalf of the Company by its Chairman, a Vice Chairman, its
President, one of its Vice Presidents or its Treasurer, under its corporate seal
reproduced thereon and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers may be manual or facsimile
and may be printed or otherwise reproduced on the Debt Securities.
Debt Securities and Coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Debt
Securities and Coupons or did not hold such offices at the date of such Debt
Securities and Coupons.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Debt Securities, with appropriate Coupons, if
any, of any series, executed by the Company, to the Trustee for authentication,
together with a Company Order for the authentication and delivery of such Debt
Securities and Coupons, if any, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Debt Securities and Coupons; provided,
however, that, in the case of Debt Securities offered in a Periodic Offering,
the Trustee shall authenticate and deliver such Debt Securities from time to
time in accordance with such other procedures (including, without limitation,
the receipt by the Trustee of oral or electronic instructions from the Company
or its duly authorized agents, promptly confirmed in writing) acceptable to the
Trustee as may be specified by or pursuant to a Company Order delivered to the
Trustee prior to the time of the first authentication of Debt Securities of such
series; provided, further, that, in connection with its sale during the
"restricted period" (as defined in Section 1.163-5(c)(2)(i)(D)(7) of the
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United States Treasury Regulations), no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and provided, further,
that a Bearer Security (other than a temporary Global Note in bearer form) may
be delivered outside the United States in connection with its original issuance
only if the Person entitled to receive such Bearer Security shall have furnished
to the Euro-clear Operator or to CEDEL a certificate substantially in the form
set forth in Exhibit A to this Indenture. If any Debt Security shall be
represented by a permanent Global Note, then, for purposes of this Section and
Section 3.04, the notation of a beneficial owner's interest therein upon
original issuance of such Debt Security or upon exchange of a portion of a
temporary Global Note shall be deemed to be delivery in connection with the
original issuance of such beneficial owner's interest in such permanent Global
Note. Except as permitted by Section 3.06 or 3.07, the Trustee shall not
authenticate and deliver any Bearer Security unless all Coupons, if any, for
interest then matured have been detached and cancelled.
The Trustee shall be entitled to receive, and (subject to Section 6.01)
shall be fully protected in relying upon, prior to the authentication and
delivery of the Debt Securities and Coupons, if any, of such series, (i) the
supplemental indenture or the Board Resolutions and, if applicable, Officers'
Certificate by or pursuant to which the form and terms of such Debt Securities
and Coupons, if any, have been approved, (ii) the Company Order for the
authentication and delivery of the Debt Securities and Coupons, if any, of such
series, and (iii) an Opinion of Counsel substantially to the effect that:
(1) the form or forms of such Debt Securities and Coupons, if any,
have been established in conformity with the provisions of this Indenture
and the terms of such Debt Securities and Coupons, if any, have been, or in
the case of Debt Securities offered in a Periodic Offering, will be,
established in conformity with the provisions of this Indenture, subject,
in the case of Debt Securities of a series offered in a Periodic Offering,
to any conditions specified in such Opinion of Counsel;
(2) in the event that the forms or terms of such Debt Securities and
Coupons, if any, have been established in a supplemental indenture, the
execution and delivery of such supplemental indenture has been duly
authorized by all necessary corporate action of the Company, such
supplemental indenture has been duly executed and delivered by the Company
and, assuming due authorization, execution and delivery by the Trustee, is
a valid and binding obligation enforceable against the Company in
accordance with its terms, 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;
(3) the execution and delivery of such Debt Securities and Coupons, if
any, have been duly authorized by all necessary corporate action of the
Company and such Debt Securities and Coupons, if any, have been duly
executed by the Company and, assuming due authentication by the Trustee and
delivery by the Company, are valid and binding obligations enforceable
against the Company in accordance with their terms, entitled to the benefit
of the Indenture, 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 and subject to such other
reasonable exceptions as counsel shall request and as to which the Trustee
shall not reasonably object; and
(4) the amount of Debt Securities Outstanding of such series, together
with the amount of such Debt Securities, does not exceed any limit
established under Section 6.01 on the amount of Debt Securities of such
series that may be authenticated and delivered.
Notwithstanding the provisions of Section 3.01 and of the two preceding
paragraphs, if all Debt Securities of a series are not to be originally issued
at one time, it shall not be necessary to deliver the Officer's Certificate
otherwise required pursuant to Section 3.01 or the Company Order and Opinion of
Counsel otherwise required pursuant to such preceding paragraphs at or prior to
the time of authentication of each Debt Security of such series if such
documents are delivered at or prior to the authentication upon original issuance
of the first Debt Security of such series to be issued.
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With respect to Debt Securities of a series offered in a Periodic Offering,
the Trustee may rely, as to the authorization by the Company of any of such Debt
Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and the other
documents delivered pursuant to Sections 2.01 and 3.01 and this Section, as
applicable, in connection with the first authentication of Debt Securities of
such series.
The Trustee shall not be required to authenticate such Debt Securities and
Coupons, if any, if the issuance of such Debt Securities and Coupons, if any,
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Debt Securities, the Coupons, if any, and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
Each Registered Security shall be dated the date of its authentication.
Each Bearer Security (including any temporary or permanent or other definitive
Bearer Security in global form) shall be dated as of the date of original
issuance of the first Debt Security of such series to be issued, except as
otherwise provided pursuant to Section 3.01 with respect to the Bearer
Securities of any series.
No Debt Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Debt
Security a certificate of authentication substantially in one of the forms
provided for herein duly executed by the Trustee or by an Authenticating Agent,
and such certificate upon any Debt Security shall be conclusive evidence, and
the only evidence, that such Debt Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture. No Coupon
shall be entitled to the benefits of this Indenture or shall be valid and
obligatory for any purpose until the certificate of authentication on the Debt
Security to which such Coupon appertains shall have been duly executed by the
Trustee or by an Authenticating Agent. Notwithstanding the foregoing, if any
Debt Security shall have been duly authenticated and delivered hereunder but
never issued and sold by the Company, and the Company shall deliver such Debt
Security to the Trustee for cancellation as provided in Section 3.08 together
with an Officers' Certificate or Company Request or Order (which need not
otherwise comply with Section 1.02) stating that such Debt Security has never
been issued and sold by the Company, for all purposes of this Indenture such
Debt Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
Section 3.04. Temporary Debt Securities; Exchange of Temporary Global Notes
for Definitive Bearer Securities; Global Notes Representing Registered
Securities.
(a) Pending the preparation of definitive Registered Securities of any
series, the Company may execute, and upon receipt of the documents required by
Section 3.03, if any, together with a Company Order, the Trustee shall
authenticate and deliver, temporary Registered Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in each case in
form reasonably satisfactory to the Trustee, in any authorized denomination for
Registered Securities of such series, substantially of the tenor of the
definitive Registered Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Registered Securities may determine in concurrence with
the Trustee (which concurrence shall not be unreasonably withheld), as
conclusively evidenced by their execution of such Registered Securities. Every
such temporary Registered Security shall be executed by the Company and shall be
authenticated and delivered by the Trustee upon the same conditions and in
substantially the same manner, and with the same effect, as the definitive
Registered Securities in lieu of which they are issued. In the case of any
series issuable as Bearer Securities, such temporary Debt Securities may be in
global form, representing such of the Outstanding Debt Securities of such series
as shall be specified therein.
Except in the case of temporary Debt Securities in global form (which shall
be exchanged in accordance with the provisions of the following paragraphs), if
temporary Debt Securities of any series are issued, the Company will cause
definitive Debt Securities of such series to be prepared without unreasonable
delay. After the preparation of definitive Debt Securities of such series, the
temporary Debt Securities of such series shall be exchangeable for definitive
Debt Securities of such series, of a like Stated Maturity and with like terms
and provisions, upon surrender of the temporary Debt Securities of such series
at the office or agency of the Company in a Place of Payment for such series,
without charge to the Holder, except as provided in Section 3.05 in connection
with a transfer. Upon surrender for cancellation of any one or more temporary
Debt
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Securities of any series (accompanied by any unmatured Coupons), the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Debt Securities of the same
series of authorized denominations and of a like Stated Maturity and like terms
and provisions; provided, however, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; and provided,
further, that a definitive Bearer Security (including a permanent Bearer
Security in global form) shall be delivered in exchange for a temporary Bearer
Security only in compliance with the conditions set forth in Section 3.03. Until
so exchanged, the temporary Registered Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Registered Securities of such series.
(b) Unless otherwise permitted in or pursuant to the applicable Board
Resolution, all Bearer Securities of a series shall be initially issued in the
form of a single temporary Bearer Security in global form (a "temporary Global
Note"). The Company shall execute, and upon Company Order the Trustee shall
authenticate, any temporary Global Note and any permanent Bearer Security in
global form (as described below, a "permanent Global Note") upon the same
conditions and in substantially the same manner, and with the same effect, as
definitive Bearer Securities, and the temporary or permanent Global Note, as the
case may be, shall, unless otherwise specified therein, be delivered by the
Trustee to the London office of a depositary or common depositary (the "Common
Depositary"), for the benefit of the Euro-clear Operator or CEDEL, as the case
may be, for credit to the account of the Company (in the case of sales of Bearer
Securities by the Company directly to investors) or the managing underwriter (in
the case of sales of Bearer Securities by the Company to underwriters) or such
other accounts as the Company or the managing underwriter, respectively, may
direct.
On or after the date specified in or determined pursuant to the terms of
any temporary Global Note which (subject to any applicable laws and regulations)
shall be at least 40 days after the issue date of a temporary Global Note (the
"Exchange Date"), the Debt Securities represented by such temporary Global Note
may be exchanged for definitive Debt Securities (subject to the second
succeeding paragraph) or Debt Securities to be represented thereafter by one or
more permanent Global Notes in definitive form without Coupons. On or after the
Exchange Date, such temporary Global Note shall be surrendered by the Common
Depositary to the Trustee (or such other agent as is specified for the purpose
pursuant to Section 3.01), as the Company's agent for such purpose at such place
specified outside the United States pursuant to Section 3.01 and following such
surrender, the Trustee (or such other agent) shall (1) endorse the temporary
Global Note to reflect the reduction of its principal amount by an equal
aggregate principal amount of such Debt Security, (2) endorse the applicable
permanent Global Note, if any, to reflect the initial amount, or an increase in
the amount of Debt Securities represented thereby, (3) manually authenticate
such definitive Debt Securities (including any permanent Global Note), (4)
deliver such definitive Debt Securities to the Holders thereof or, if such
definitive Debt Security is a permanent Global Note, deliver such permanent
Global Note to the Common Depositary to be held outside the United States for
the accounts of the Euro-clear Operator or CEDEL, as the case may be, for credit
to the respective accounts at Euro-clear Operator or CEDEL, as the case may be,
designated by or on behalf of the beneficial owners of such Debt Securities (or
to such other accounts as they may direct) and (5) redeliver such temporary
Global Note to the Common Depositary, unless such temporary Global Note shall
have been cancelled in accordance with Section 3.08 hereof; provided, however,
that, unless otherwise specified in such temporary Global Note, upon such
presentation by the Common Depositary, such temporary Global Note shall be
accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by the Euro-clear Operator, as to the portion of such temporary Global
Note held for its account then to be exchanged for definitive Debt Securities
(including any permanent Global Note), and a certificate dated the Exchange Date
or a subsequent date and signed by CEDEL, as to the portion of such temporary
Global Note held for its account then to be exchanged for definitive Debt
Securities (including any permanent Global Note), each substantially in the form
set forth in Exhibit B to this Indenture. Each certificate substantially in the
form of Exhibit B hereto of the Euro-clear Operator or CEDEL, as the case may
be, shall be based on certificates of the account holders listed in the records
of the Euro-clear Operator or CEDEL, as the case may be, as being entitled to
all or any portion of the applicable temporary Global Note. An account holder of
the Euro-clear Operator or CEDEL, as the case may be, desiring to effect the
exchange of an interest in a temporary Global Note for an interest in definitive
Debt Securities (including any permanent
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Global Note) shall instruct the Euro-clear Operator or CEDEL, as the case may
be, to request such exchange on its behalf and shall deliver to the Euro-clear
Operator or CEDEL, as the case may be, a certificate substantially in the form
of Exhibit A hereto and dated no earlier than 10 days prior to the Exchange
Date. Until so exchanged, temporary Global Notes shall in all respects be
entitled to the same benefits under this Indenture as definitive Debt Securities
(including any permanent Global Note) of the same series authenticated and
delivered hereunder, except as to payment of interest, if any.
On or prior to the Exchange Date, the Company shall deliver to the Trustee
(or such other agent as may be specified for such purpose pursuant to Section
3.01) definitive Debt Securities in an aggregate principal amount equal to the
principal amount of such temporary Global Note, executed by the Company. At any
time, on or after the Exchange Date, upon 30 days' notice to the Trustee (and
such other agent as may be specified for such purpose pursuant to Section 3.01)
by the Euro-clear Operator or CEDEL, as the case may be, acting at the request
of or on behalf of the beneficial owner, a Debt Security represented by a
temporary Global Note or a permanent Global Note, as the case may be, may be
exchanged, in whole or from time to time in part, for definitive Debt Securities
without charge and the Trustee (or such agent) shall authenticate and deliver,
in exchange for each portion of such temporary Global Note or such permanent
Global Note, an equal aggregate principal amount of definitive Debt Securities
of the same series of authorized denominations and of a like Stated Maturity and
with like terms and conditions, as the portion of such temporary Global Note or
such permanent Global Note to be exchanged, which, unless the Debt Securities of
the series are not issuable both as Bearer Securities and as Registered
Securities, as contemplated by Section 3.01, shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof, as shall be
specified by the beneficial owner thereof; provided, however, that definitive
Bearer Securities shall be delivered in exchange for a portion of the temporary
Global Note or the permanent Global Note only in compliance with the
requirements of the second preceding paragraph. On or prior to the forty-fifth
day following receipt by the Trustee (and such agent as may be specified as the
Company's agent for such purpose pursuant to Section 3.01) of such notice with
respect to a Debt Security, or, if such day is not a Business Day, the next
succeeding Business Day, the temporary Global Note or the permanent Global Note,
as the case may be, shall be surrendered by the Common Depositary to the Trustee
(or such other agent as may be specified as the Company's agent for such purpose
pursuant to Section 3.01), as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Debt Securities
without charge following such surrender, upon the request of the Euro-clear
Operator or CEDEL, as the case may be, and the Trustee (or such agent) shall (1)
endorse the applicable temporary Global Note or the permanent Global Note to
reflect the reduction of its principal amount by the aggregate principal amount
of such Debt Security, (2) cause the terms of such Debt Security and Coupons, if
any, to be entered on a definitive Debt Security, (3) manually authenticate such
definitive Debt Security, and (4) if a Bearer Security is to be delivered,
deliver such definitive Debt Security outside the United States to the
Euro-clear Operator or CEDEL, as the case may be, for or on behalf of the
beneficial owner thereof, in exchange for a portion of such temporary Global
Note or the permanent Global Note.
Unless otherwise specified in such temporary Global Note or the permanent
Global Note, any such exchange shall be made free of charge to the beneficial
owners of such temporary Global Note or the permanent Global Note, except that a
Person receiving definitive Debt Securities must bear the cost of insurance,
postage, transportation and the like in the event that such Person does not take
delivery of such definitive Debt Securities in person at the offices of the
Euro-clear Operator or CEDEL. Definitive Debt Securities in bearer form to be
delivered in exchange for any portion of a temporary Global Note or the
permanent Global Note shall be delivered only outside the United States.
Notwithstanding the foregoing, in the event of redemption or acceleration of all
or any part of a temporary Global Note prior to the Exchange Date, a permanent
Global Note or definitive Bearer Securities, as the case may be, will not be
issuable in respect of such temporary Global Note or such portion thereof, and
payment thereon will instead be made as provided in such temporary Global Note.
Until exchanged in full as hereinabove provided, any temporary Global Note
or the permanent Global Note shall in all respects be entitled to the same
benefits under this Indenture as definitive Debt Securities of the same series
and tenor authenticated and delivered hereunder, except that, unless otherwise
specified as
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contemplated by Section 3.01, interest payable on such temporary Global Note on
an Interest Payment Date for Debt Securities of such series occurring prior to
the applicable Exchange Date shall be payable to the Euro-clear Operator or
CEDEL on such Interest Payment Date upon delivery by the Euro-clear Operator or
CEDEL to the Trustee of a certificate or certificates substantially in the form
set forth in Exhibit B to this Indenture, for credit without further interest on
or after such Interest Payment Date to the respective accounts of the Persons
who are the beneficial owners of such temporary Global Note on such Interest
Payment Date and who have each delivered to the Euro-clear Operator or CEDEL, as
the case may be, a certificate substantially in the form set forth in Exhibit A
to this Indenture.
Any definitive Bearer Security authenticated and delivered by the Trustee
in exchange for a portion of a temporary Global Note or the permanent Global
Note shall not bear a Coupon for any interest which shall theretofore have been
duly paid by the Trustee to the Euro-clear Operator or CEDEL, or by the Company
to the Trustee in accordance with the provisions of this Section 3.04.
With respect to Exhibits A and B to this Indenture, the Company may, in its
discretion and if required or desirable under applicable law, substitute one or
more other forms of such Exhibits for such Exhibits, eliminate the requirement
that any or all certificates be provided, or change the time that any
certificate may be required, provided that such substitute form or forms or
notice of elimination or change of such certification requirement have
theretofore been delivered to the Trustee (and any agent of the Company
appointed pursuant to Section 3.01 and referred to above) with a Company Request
and such form or forms, elimination or change is reasonably acceptable to the
Trustee (and any such agent).
(c) If the Company shall establish pursuant to Section 3.01 that the
Registered Securities of a series are to be issued in whole or in part in the
form of one or more Global Notes, then the Company shall execute and the Trustee
shall, in accordance with Section 3.03 and the Company Order with respect to
such series, authenticate and deliver one or more Global Notes in temporary or
permanent form that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of the Outstanding Debt Securities of
such series to be represented by one or more Global Notes, (ii) shall be
registered in the name of the U.S. Depositary for such Global Note or Notes or
the nominee of such depositary, and (iii) shall bear a legend substantially to
the following effect: "This Debt Security may not be transferred except as a
whole by the Depositary to a 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, unless and until this Debt Security is exchanged in whole
or in part for Debt Securities in definitive form."
Notwithstanding any other provision of this Section or Section 3.05, unless
and until it is exchanged in whole or in part for Registered Securities in
definitive form, a Global Note representing all or a portion of the Registered
Securities of a series may not be transferred except as a whole by the U.S.
Depositary for such series to a nominee of such depositary or by a nominee of
such depositary to such depositary or another nominee of such depositary or by
such depositary or any such nominee to a successor U.S. Depositary for such
series or a nominee of such successor depositary.
If at any time the U.S. Depositary for the Debt Securities of a series
notifies the Company that it is unwilling or unable to continue as U.S.
Depositary for the Debt Securities of such series or if at any time the U.S.
Depositary for Debt Securities of a series shall no longer be a clearing agency
registered and in good standing under the Securities Exchange Act of 1934, as
amended, or other applicable statute or regulation, the Company shall appoint a
successor U.S. Depositary with respect to the Debt Securities of such series. If
a successor U.S. Depositary for the Debt Securities of such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such condition, the Company will execute, and the Trustee,
upon receipt of a Company Order for the authentication and delivery of
definitive Debt Securities of such series, will authenticate and deliver,
Registered Securities of such series in definitive form in an aggregate
principal amount equal to the principal amount of the Global Note or Notes
representing such series in exchange for such Global Note or Notes.
The Company may at any time and in its sole discretion determine that the
Registered Securities of any series issued in the form of one or more Global
Notes shall no longer be represented by such Global Note or
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Notes. In such event, the Company will execute, and the Trustee, upon receipt of
a Company Order for the authentication and delivery of definitive Debt
Securities of such series, will authenticate and deliver, Registered Securities
of such series in definitive form and in an aggregate principal amount equal to
the principal amount of the Global Note or Notes representing such series in
exchange for such Global Note or Notes.
If the Registered Securities of any series shall have been issued in the
form of one or more Global Notes and if an Event of Default with respect to the
Debt Securities of such series shall have occurred and be continuing, the
Company will promptly execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Debt Securities of such
series, will authenticate and deliver, Registered Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Note or Notes representing such series in exchange for such
Global Note or Notes.
If specified by the Company pursuant to Section 3.01 with respect to
Registered Securities of a series, the U.S. Depositary for such series of
Registered Securities may surrender a Global Note for such series of Debt
Securities in exchange in whole or in part for Registered Securities of such
series in definitive form on such terms as are acceptable to the Company and
such depositary. Thereupon, the Company shall execute and the Trustee shall
authenticate and deliver, without charge:
(i) to each Person specified by the U.S. Depositary a new Registered
Security or Securities of the same series, of any authorized denomination
as requested by such Person in an aggregate principal amount equal to and
in exchange for such Person's beneficial interest in the Global Note; and
(ii) to the U.S. Depositary a new Global Note in a denomination equal
to the difference, if any, between the principal amount of the surrendered
Global Note and the aggregate principal amount of Registered Securities
delivered to Holders thereof.
Upon the exchange of a Global Note for Registered Securities in definitive
form, such Global Note shall be cancelled by the Trustee. Debt Securities issued
in exchange for a Global Note pursuant to this subsection (c) shall be
registered in such names and in such authorized denominations as the U.S.
Depositary for such Global Note, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Debt Securities to the Persons in whose names such Debt
Securities are so registered.
Section 3.05. Registration, Transfer and Exchange.
(a) The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the registers maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe and to which the Trustee shall not
have reasonably objected, the Company shall provide for the registration of
Registered Securities and of transfers and exchanges of Registered Securities.
The Trustee is hereby appointed "Security Registrar" for the purpose of
registering Registered Securities and registering transfers and exchanges of
Registered Securities as herein provided; provided, however, that the Company
may appoint co-Security Registrars so long as there is no more than one Security
Registrar for each series of Debt Securities.
Upon surrender for registration of transfer of any Registered Security of
any series at the office or agency of the Company maintained for such purpose,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee, one or more new Registered Securities of
the same series of like aggregate principal amount of such denominations as are
authorized for Registered Securities of such series and of a like Stated
Maturity and with like terms and conditions.
Except as otherwise provided in Section 3.04 and this Section 3.05, at the
option of the Holder, Registered Securities of any series may be exchanged for
other Registered Securities of the same series of like aggregate principal
amount and of a like Stated Maturity and with like terms and conditions, upon
surrender of the Registered Securities to be exchanged at such office or agency.
Whenever any Registered Securities are surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Registered
Securities which the Holder making the exchange is entitled to receive.
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(b) If and to the extent permitted in or pursuant to the applicable Board
Resolution, the provisions of this Section 3.05(b) shall be applicable to Bearer
Securities. At the option of the Holder thereof, to the extent permitted by law,
any Bearer Security of any series which by its terms is registrable as to
principal and interest may be exchanged for a Registered Security of such series
of like aggregate principal amount and of a like Stated Maturity and with like
terms and conditions upon surrender of such Bearer Security at the Corporate
Trust Office or at any other office or agency of the Company designated pursuant
to Section 3.01 for the purpose of making any such exchanges. Any Coupon
Security surrendered for exchange shall be surrendered with all unmatured
Coupons and any matured Coupons in default attached thereto. If the Holder of a
Bearer Security is unable to produce any such unmatured Coupon or Coupons or
matured Coupon or Coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
in an amount equal to the face amount of such missing Coupon or Coupons, or the
surrender of such missing Coupon or Coupons may be waived by the Company and the
Trustee if there is furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the
Holder of such Bearer Security shall surrender to any Paying Agent any such
missing Coupon in respect of which such a payment shall have been made, such
Holder shall be entitled to receive the amount of such payment; provided,
however, that except as otherwise provided in Section 12.03, interest
represented by Coupons shall be payable only upon presentation and surrender of
those Coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in exchange for a Registered Security
of the same series and of a like Stated Maturity and with like terms and
conditions after the close of business at such office or agency on (i) any
Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the Coupon relating to such Interest Payment Date or
proposed date for payment, as the case may be (or, if such Coupon is so
surrendered with such Bearer Security, such Coupon shall be returned to the
Person so surrendering the Bearer Security), and interest or Defaulted Interest,
as the case may be, will not be payable on such Interest Payment Date or
proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such Coupon when due in accordance with the provisions of this
Indenture. The Company shall execute, and the Trustee shall authenticate and
deliver, the Registered Security or Securities which the Holder making the
exchange is entitled to receive.
Notwithstanding the foregoing, the exchange of Bearer Securities for
Registered Securities will be subject to the provisions of United States income
tax laws and regulations applicable to Debt Securities in effect at the time of
such exchange.
(c) Except as otherwise specified pursuant to Section 3.01, in no event may
Registered Securities, including Registered Securities received in exchange for
Bearer Securities, be exchanged for Bearer Securities.
(d) All Debt Securities issued upon any registration of transfer or
exchange of Debt Securities shall be valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Debt Securities surrendered for such registration of transfer
or exchange.
Every Registered Security presented or surrendered for registration of
transfer or exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Trustee, duly executed, by the Holder
thereof or his attorney duly authorized in writing.
No service charge will be payable by the Holder for any registration of
transfer or exchange of Debt Securities except as provided in Section 3.04(b) or
3.06. The Company may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Debt Securities, other than those
expressly provided in this Indenture to be made at the Company's own expense or
without expense or without charge to the Holders.
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The Company shall not be required (i) to register the transfer of or
exchange Debt Securities of any series during a period beginning at the opening
of business 15 days before the day of the transmission of a notice of redemption
of Debt Securities of such series selected for redemption under Section 13.03
and ending at the close of business on the day of such transmission, or (ii) to
register the transfer of or exchange any Debt Security so selected for
redemption in whole or in part, except the unredeemed portion of any Debt
Security being redeemed in part.
Section 3.06. Mutilated, Destroyed, Lost and Stolen Debt Securities.
If (i) any mutilated Debt Security or any mutilated Coupon with the Coupon
Security to which it appertains (and all unmatured Coupons attached thereto) is
surrendered to the Trustee, or (ii) the Company and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Debt Security or
any Coupon, and there is delivered to the Company and the Trustee such security
or indemnity as may be required by them to save each of them and any Paying
Agent harmless, and neither the Company nor the Trustee receives notice that
such Debt Security or Coupon has been acquired by a bona fide purchaser, then
the Company shall execute and upon Company Request the Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Debt Security or in exchange for the Coupon Security
to which such mutilated, destroyed, lost or stolen Coupon appertained, a new
Debt Security of the same series of like Stated Maturity and with like terms and
conditions and like principal amount, bearing a number not contemporaneously
Outstanding, and, in the case of a Coupon Security, with such Coupons attached
thereto that neither gain nor loss in interest shall result from such exchange
or substitution.
In case any such mutilated, destroyed, lost or stolen Debt Security or
Coupon has become due and payable, the Company in its discretion may, instead of
issuing a new Debt Security, pay the amount due on such Debt Security or Coupon
in accordance with its terms; provided, however, that principal of (and premium,
if any) and any interest on Bearer Securities shall, except as otherwise
provided in Section 12.03, be payable only at an office or agency located
outside the United States and, unless otherwise specified as contemplated by
Section 3.01 or except as otherwise provided in this Section 3.06, any interest
on Bearer Securities shall be payable only upon presentation and surrender of
the Coupons appertaining thereto.
Upon the issuance of any new Debt Security under this Section 3.06, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in respect thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Debt Security or Coupon of any series issued pursuant to this
Section shall constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Debt Security or Coupon
shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Debt Securities or Coupons of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Debt Securities or Coupons.
Section 3.07. Payment of Interest; Interest Rights Preserved.
(a) Unless otherwise specified or contemplated by Section 3.01 with respect
to the Debt Securities of any series, interest on any Registered Security which
is payable and is punctually paid or duly provided for on any Interest Payment
Date shall be paid to the Person in whose name such Registered Security (or one
or more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest notwithstanding the cancellation of such
Registered Security upon any registration of transfer or exchange subsequent to
the Regular Record Date. Unless otherwise specified as contemplated by Section
3.01 with respect to the Debt Securities of any series, payment of interest on
Registered Securities shall be made at the place or places specified pursuant to
Section 3.01 or, at the option of the Company, by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register or, if provided pursuant to Section 3.01, by wire transfer to an
account designated by the Registered Holder.
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(b) Interest on any Coupon Security which is payable and is punctually paid
or duly provided for on any Interest Payment Date shall be paid to the Holder of
the Coupon which has matured on such Interest Payment Date upon surrender of
such Coupon on such Interest Payment Date at an office or agency of the Company
in a Place of Payment located outside the United States specified pursuant to
Section 3.01.
Interest on any Bearer Security (other than a Coupon Security) which is
payable and is punctually paid or duly provided for on any Interest Payment Date
shall be paid to the Holder of the Bearer Security upon presentation of such
Bearer Security and notation thereon on such Interest Payment Date at such Place
of Payment outside the United States specified pursuant to Section 3.01.
Unless otherwise specified pursuant to Section 3.01, at the direction of
the Holder of any Bearer Security or Coupon payable in Dollars, payment on such
Bearer Security or Coupon will be made upon presentation of such Bearer Security
or Coupon, by check drawn on a bank in The City of New York or, if agreeable to
the Trustee, by wire transfer to a Dollar account maintained by such Holder
outside the United States. If such payment at the offices of all Paying Agents
outside the United States becomes illegal or is effectively precluded because of
the imposition of exchange controls or similar restrictions on the full payment
or receipt of such amounts in Dollars, the Company will appoint an office or
agent in the United States at which such payment may be made. Unless otherwise
specified pursuant to Section 3.01, at the direction of the Holder of any Bearer
Security or Coupon payable in a Foreign Currency, payment on such Bearer
Security or Coupon will be made, upon presentation of such Bearer Security or
Coupon, by a check drawn on a bank outside the United States or by wire transfer
to an appropriate account maintained by such Holder outside the United States.
Except as provided in this paragraph, no payment on any Bearer Security or
Coupon will be made by mail to an address in the United States or by wire
transfer to an account in the United States.
(c) Any interest on any Debt Security which is payable but is not
punctually paid or duly provided for on any Interest Payment Date (herein called
"Defaulted Interest") shall, if such Debt Security is a Registered Security,
forthwith cease to be payable to the Registered Holder on the relevant Regular
Record Date by virtue of his having been such Registered Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names such Registered Securities (or their respective
Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall
be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
such Registered Security and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of money in
the Currency or Currency unit in which the Debt Securities of such series
are payable (except as otherwise specified pursuant to Section 3.01 or
3.10) equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which date shall be not more than 30 days and not less than 10 days prior
to the date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date and, in the
name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to the Holders of such Registered
Securities at their addresses as they appear in the Security Register, not
less than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid to
the Persons in whose names such Registered Securities (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted Interest on
Registered Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such
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Registered Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
(d) Any Defaulted Interest payable in respect of Bearer Securities of any
series shall be payable pursuant to such procedures as may be satisfactory to
the Trustee in such manner that there is no discrimination between the Holders
of Registered Securities (if any) and Bearer Securities of such series, and
notice of the payment date therefor shall be given by the Trustee, in the name
and at the expense of the Company, in the manner provided in Section 1.05 not
more than 30 days and not less than 10 days prior to the date of the proposed
payment.
(e) Subject to the foregoing provisions of this Section 3.07, each Debt
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Debt Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Debt Security.
Section 3.08. Cancellation.
Unless otherwise specified pursuant to Section 3.01 for Debt Securities of
any series, all Debt Securities surrendered for payment, redemption,
registration of transfer, exchange or credit against any sinking fund and all
Coupons surrendered for payment or exchange shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee. All Registered Securities
and matured Coupons so delivered shall be promptly cancelled by the Trustee. All
Bearer Securities and unmatured Coupons so delivered shall be promptly cancelled
by the Trustee. The Company may at any time deliver to the Trustee for
cancellation any Debt Securities or Coupons previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Debt Securities previously authenticated
hereunder which the Company has not issued, and all Debt Securities or Coupons
so delivered shall be promptly cancelled by the Trustee. No Debt Securities or
Coupons shall be authenticated in lieu of or in exchange for any Debt Securities
or Coupons cancelled as provided in this Section 3.08, except as expressly
permitted by this Indenture. All cancelled Debt Securities and Coupons held by
the Trustee shall be destroyed unless the Company by a Company Order directs
that cancelled Debt Securities and Coupons held by the Trustee be delivered to
the Company. The acquisition of any Debt Securities or Coupons by the Company
shall not operate as a redemption or satisfaction of the indebtedness
represented thereby unless and until such Debt Securities or Coupons are
surrendered to the Trustee for cancellation. In the case of any temporary Global
Note which shall be destroyed if the entire aggregate principal amount of the
Debt Securities represented thereby has been exchanged, the certificate of
destruction shall state that all certificates required pursuant to Section 3.04
hereof and substantially in the form of Exhibit B hereto, to be given by the
Euro-clear Operator or CEDEL, have been duly presented to the Trustee by the
Euro-clear Operator or CEDEL, as the case may be. Permanent Global Notes shall
not be destroyed until exchanged in full for definitive Debt Securities or until
payment thereon is made in full.
Section 3.09. Computation of Interest.
Except as otherwise specified pursuant to Section 3.01 for Debt Securities
of any series, interest on the Debt Securities of each series shall be computed
on the basis of a 360-day year of twelve 30-day months.
Section 3.10. Currency of Payments in Respect of Debt Securities.
(a) Except as otherwise specified pursuant to Section 3.01 for Bearer
Securities of any series, payment of the principal of (and premium, if any) and
interest on Bearer Securities of such series denominated in any Currency will be
made in such Currency.
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(b) With respect to Registered Securities of any series not permitting the
election provided for in paragraph (c) below or the Holders of which have not
made the election provided for in paragraph (c) below, except as provided in
paragraph (e) below, payment of the principal of (and premium, if any) and any
interest on any Registered Security of such series will be made in the Currency
in which such Registered Security is payable.
(c) It may be provided pursuant to Section 3.01 with respect to the
Registered Securities of any series that Holders shall have the option, subject
to paragraphs (e) and (f) below, to receive payments of principal of (and
premium, if any) and any interest on such Registered Securities in any of the
Currencies which may be designated for such election by delivering to the
Trustee a written election, to be in form and substance reasonably satisfactory
to the Trustee, not later than the close of business on the Election Date
immediately preceding the applicable payment date. If a Holder so elects to
receive such payments in any such Currency, such election will remain in effect
for such Holder or any transferee of such Holder until changed by such Holder or
such transferee by written notice to the Trustee (but any such change must be
made not later than the close of business on the Election Date immediately
preceding the next payment date to be effective for the payment to be made on
such payment date and no such change or election may be made with respect to
payments to be made on any Registered Security of such series with respect to
which an Event of Default has occurred or notice of redemption has been given by
the Company pursuant to Article Thirteen). Any Holder of any such Registered
Security who shall not have delivered any such election to the Trustee by the
close of business on the applicable Election Date will be paid the amount due on
the applicable payment date in the relevant Currency as provided in paragraph
(b) of this Section 3.10.
(d) If the election referred to in paragraph (c) above has been provided
for pursuant to Section 3.01, then not later than the fourth Business Day after
the Election Date for each payment date, the Trustee will deliver to the Company
a written notice specifying, in the Currency in which each series of the
Registered Securities is payable, the respective aggregate amounts of principal
of (and premium, if any) and any interest on the Registered Securities to be
paid on such payment date, specifying the amounts so payable in respect of the
Registered Securities as to which the Holders of Registered Securities
denominated in any Currency shall have elected to be paid in another Currency as
provided in paragraph (c) above. If the election referred to in paragraph (c)
above has been provided for pursuant to Section 3.01 and if at least one Holder
has made such election, then, on the second Business Day preceding each payment
date, the Company will deliver to the Trustee an Exchange Rate Officer's
Certificate in respect of the Currency payments to be made on such payment date.
The Currency amount receivable by Holders of Registered Securities who have
elected payment in a Currency as provided in paragraph (c) above shall be
determined by the Company on the basis of the applicable Market Exchange Rate in
effect on the third Business Day (the "Valuation Date") immediately preceding
each payment date.
(e) If a Conversion Event occurs with respect to a Foreign Currency, the
ECU or any other Currency unit in which any of the Debt Securities are
denominated or payable other than pursuant to an election provided for pursuant
to paragraph (c) above, then with respect to each date for the payment of
principal of (and premium, if any) and any interest on the applicable Debt
Securities denominated or payable in such Foreign Currency, the ECU or such
other Currency unit occurring after the last date on which such Foreign
Currency, the ECU or such other Currency unit was used (the "Conversion Date"),
the Dollar shall be the Currency of payment for use on each such payment date.
The Dollar amount to be paid by the Company to the Trustee and by the Trustee or
any Paying Agent to the Holders of such Debt Securities with respect to such
payment date shall be the Dollar Equivalent of the Foreign Currency or, in the
case of a Currency unit, the Dollar Equivalent of the Currency unit, in each
case as determined by the Currency Determination Agent, if any, in the manner
provided in paragraph (g) or (h) below.
(f) If the Holder of a Registered Security denominated in any Currency
shall have elected to be paid in another Currency as provided in paragraph (c)
above, and a Conversion Event occurs with respect to such elected Currency, such
Holder shall receive payment in the Currency in which payment would have been
made in the absence of such election. If a Conversion Event occurs with respect
to the Currency in which payment would have been made in the absence of such
election, such Holder shall receive payment in Dollars as provided in paragraph
(e) of this Section 3.10.
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(g) The "Dollar Equivalent of the Foreign Currency" shall be determined by
the Currency Determination Agent, if any, and shall be obtained for each
subsequent payment date by converting the specified Foreign Currency into
Dollars at the Market Exchange Rate on the Conversion Date.
(h) The "Dollar Equivalent of the Currency unit" shall be determined by the
Currency Determination Agent, if any, and subject to the provisions of paragraph
(i) below, shall be the sum of each amount obtained by converting the Specified
Amount of each Component Currency into Dollars at the Market Exchange Rate for
such Component Currency on the Valuation Date with respect to each payment.
(i) For purposes of this Section 3.10 the following terms shall have the
following meanings:
A "Component Currency" shall mean any Currency which, on the
Conversion Date, was a component Currency of the relevant Currency unit,
including, but not limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the number of
units of such Component Currency or fractions thereof which were
represented in the relevant Currency unit, including, but not limited to,
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 amounts of such two or more Currencies with
appropriate Dollar equivalents at the Market Exchange Rate on the date of
such replacement equal to the Dollar equivalent of the Specified Amount of
such former Component Currency at the Market Exchange Rate on such date,
and such amounts shall thereafter be Specified Amounts and such Currencies
shall thereafter be Component Currencies. If after the Conversion Date of
the relevant Currency unit, including but not limited to, the ECU, a
Conversion Event (other than any event referred to above in this definition
of "Specified Amount") occurs with respect to any Component Currency of
such Currency unit, the Specified Amount of such Component Currency shall,
for purposes of calculating the Dollar Equivalent of the Currency unit, be
converted into Dollars at the Market Exchange Rate in effect on the
Conversion Date of such Component Currency.
"Election Date" shall mean the date for any series of Registered
Securities as specified pursuant to Section 301(14) by which the written
election referred to in Section 310(c) may be made.
(j) All decisions and determinations of the Currency Determination Agent,
if any, regarding the Dollar Equivalent of the Foreign Currency, the Dollar
Equivalent of the Currency unit and the Market Exchange Rate shall be in its
sole discretion and shall, in the absence of manifest error, be conclusive for
all purposes and irrevocably binding upon the Company and all Holders of the
Debt Securities denominated or payable in the relevant Currency. In the event of
a Conversion Event with respect to a Foreign Currency, the Company, after
learning thereof, will immediately give written notice thereof to the Trustee
(and the Trustee will promptly thereafter give notice in the manner provided in
Section 1.05 to the Holders) specifying the Conversion Date. In the event of a
Conversion Event with respect to the ECU or any other Currency unit in which
Debt Securities are denominated or payable, the Company, after learning thereof,
will immediately give notice thereof to the Trustee (and the Trustee will
promptly thereafter give written notice in the manner provided in Section 1.05
to the Holders) specifying the Conversion Date and the Specified Amount of each
Component Currency on the Conversion Date. In the event of any subsequent change
in any Component Currency as set forth in the definition of Specified Amount
above, the Company, after learning
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thereof, will similarly give written notice to the Trustee. The Trustee shall be
fully justified and protected in relying and acting upon information received by
it from the Company and the Currency Determination Agent, if any, and shall not
otherwise have any duty or obligation to determine such information
independently.
(k) For purposes of any provision of the Indenture where the Holders of
Outstanding Debt Securities may perform an Act which requires that a specified
percentage of the Outstanding Debt Securities of all series perform such Act and
for purposes of any decision or determination by the Trustee of amounts due and
unpaid for the principal (and premium, if any) and interest on the Debt
Securities of all series in respect of which moneys are to be disbursed ratably,
the principal of (and premium, if any) and interest on the Outstanding Debt
Securities denominated in a Foreign Currency will be the amount in Dollars based
upon the Market Exchange Rate for Debt Securities of such series, as of the date
for determining whether the Holders entitled to perform such Act have performed
it, or as of the date of such decision or determination by the Trustee, as the
case may be.
Section 3.11. Judgments.
If pursuant to Section 3.01 the provisions of this Section are established
as terms of a series of Debt Securities, and if for the purpose of obtaining a
judgment in any court with respect to any obligation of the Company hereunder or
under any Debt Security it shall become necessary to convert into any other
Currency any amount in the Currency due hereunder or under such Debt Security,
then such conversion shall be made at the Market Exchange Rate as in effect on
the date the Company shall make payment to any Person in satisfaction of such
judgment. If pursuant to any such judgment, conversion shall be made on a date
other than the date payment is made and there shall occur a change between such
Market Exchange Rate and the Market Exchange Rate as in effect on the date of
payment, the Company agrees to pay such additional amounts (if any) as may be
necessary to ensure that the amount paid is equal to the amount in such other
Currency which, when converted at the Market Exchange Rate as in effect on the
date of payment or distribution, is the amount then due hereunder or under such
Debt Security. Any amount due from the Company under this Section 3.11 shall be
due as a separate debt and is not to be affected by or merged into any judgment
being obtained for any other sums due hereunder or in respect of any Debt
Security. In no event, however, shall the Company be required to pay more in the
Currency or Currency unit due hereunder or under such Debt Security at the
Market Exchange Rate as in effect when payment is made than the amount of
Currency stated to be due hereunder or under such Debt Security so that in any
event the Company's obligations hereunder or under such Debt Security will be
effectively maintained as obligations in such Currency, and the Company shall be
entitled to withhold (or be reimbursed by the applicable Holder for, as the case
may be) any excess of the amount actually realized upon any such conversion over
the amount due and payable on the date of payment or distribution.
Section 3.12. CUSIP Numbers.
The Company in issuing the Debt Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Company shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Debt Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Debt Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture.
This Indenture, with respect to the Debt Securities of any series (if all
series issued under this Indenture are not to be affected), shall upon Company
Request, cease to be of further effect (except as to any surviving rights of
registration of transfer or exchange of such Debt Securities herein expressly
provided for and the right to receive payments of principal (and premium, if
any) and interest on such Debt Securities) and the Trustee,
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at the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Debt Securities and the Coupons, if any, of such series
theretofore authenticated and delivered (other than (i) Debt Securities and
Coupons of such series which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.06, (ii) Coupons
appertaining to Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender is not
required or has been waived under Section 3.05, (iii) Coupons appertaining
to Bearer Securities called for redemption and maturing after the relevant
Redemption Date, whose surrender has been waived as provided in Section
13.06, and (iv) Debt Securities and Coupons of such series for whose
payment money has theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 12.04) have been
delivered to the Trustee for cancellation; or
(B) all Debt Securities and the Coupons, if any, of such series not
theretofore delivered to the Trustee for cancellation,
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) if redeemable at the option of the Company, are to be called
for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) of this subclause (B),
has irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for such purpose an amount in the Currency in which
such Debt Securities are denominated (except as otherwise provided pursuant
to Section 3.01 or 3.10) sufficient to pay and discharge the entire
indebtedness on such Debt Securities for principal (and premium, if any)
and interest to the date of such deposit (in the case of Debt Securities
which have become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be; provided, however, in the event a petition for
relief under the Federal bankruptcy laws, as now or hereafter constituted,
or any other applicable Federal or state bankruptcy, insolvency or other
similar law, is filed with respect to the Company within 91 days after the
deposit and the Trustee is required to return the deposited money to the
Company, the obligations of the Company under this Indenture with respect
to such Debt Securities shall not be deemed terminated or discharged;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company;
(3) the Company 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 such series have been complied with; and
(4) the Company has delivered to the Trustee an Opinion of Counsel or
a ruling by the Internal Revenue Service to the effect that such deposit
and discharge will not cause Holders of the Debt Securities of the series
to recognize income, gain or loss for Federal income tax purposes.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07, the obligations of
the Trustee to any Authenticating Agent under Section 6.14, the obligations of
the Company under Section 12.01, and, if money shall have been deposited with
the Trustee pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 4.02 and the last paragraph of Section
12.04, shall survive. If, after the deposit referred to in Section 4.01 has been
made, (x) the Holder of a Debt Security is entitled to, and does, elect pursuant
to Section 3.10(c), to receive payment in a Currency other than that in which
the deposit pursuant to Section 4.01 was made, or (y) if a Conversion Event
occurs with respect to the Currency in which the deposit was made or elected to
be received by the Holder pursuant to Section 3.10(c), then the indebtedness
represented by such Debt Security
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shall be fully discharged to the extent that the deposit made with respect to
such Debt Security shall be converted into the Currency in which such payment is
made.
Section 4.02. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 12.04, all money
deposited with the Trustee pursuant to Section 4.01 shall be held in trust and
applied by it, in accordance with the provisions of the Debt Securities and
Coupons, if any, and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company or its Affiliates acting as Paying
Agent) as the Trustee may determine, 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.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with this Article Four by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under this Indenture and the
Debt Securities shall be revived and reinstated as though no deposit had
occurred pursuant to Section 4.01 until such time as the Trustee or such Paying
Agent is permitted to apply all such money in accordance with this Section 4.02;
provided, however, that if the Company makes any payment of interest (or
premium, if any) on or principal of any Debt Security following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Debt Securities to receive such payment from the money
held by the Trustee or such Paying Agent.
ARTICLE FIVE
REMEDIES
Section 5.01. Events of Default.
"Event of Default" wherever used herein with respect to Debt Securities of
any series means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law, pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Debt Security or
any payment with respect to the Coupons, if any, of such series when it
becomes due and payable, and continuance of such default for a period of 30
days; or
(2) default in the payment of the principal of (and premium, if any,
on) any Debt Security of such series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Debt Security of such series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than any covenant or warranty a
default in whose performance or whose breach is dealt with elsewhere in
this Section 5.01 or any covenant or warranty which has been included in
this Indenture solely for the benefit of Debt Securities of series other
than such series), and continuance of such default or breach for a period
of 60 days after there has been given, by registered or certified mail, to
the Company by the Trustee or to the Company and the Trustee by the Holders
of at least 25% in principal amount of the Outstanding Debt Securities of
such series, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(5) the entry of a decree or order for relief in respect of the
Company by a court having jurisdiction in the premises in an involuntary
case under the Federal bankruptcy laws, as now or hereafter constituted, or
any other applicable Federal or State bankruptcy, insolvency or other
similar law, or a decree or order adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Company under any
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applicable Federal or State law, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or other similar official) of
the Company or of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days;
or
(6) the commencement by the Company of a voluntary case under the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar law, or
the consent by it to the entry of an order for relief in an involuntary
case under any such law or to the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or other similar official) of
the Company or of any substantial part of its property, or the making by it
of an assignment for the benefit of its creditors, or the admission by it
in writing of its inability to pay its debts generally as they become due,
or the taking of corporate action by the Company in furtherance of any such
action; or
(7) any other Event of Default provided with respect to Debt
Securities of that series pursuant to Section 3.01.
Section 5.02. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Debt Securities of any series at
that time Outstanding (other than an Event of Default specified in Section
5.01(5) or (6)) occurs and is continuing, then in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding Debt
Securities of such series may declare the principal amount (or, if any Debt
Securities of such series are Discount Securities, such portion of the principal
amount of such Discount Securities as may be specified in the terms of such
Discount Securities) of all the Debt Securities of such series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such principal amount (or
specified amount), plus accrued and unpaid interest (and premium, if any) (the
"Default Amount"), shall become immediately due and payable. Upon payment of the
Default Amount in the Currency in which such Debt Securities are denominated
(except as otherwise provided pursuant to Section 3.01 or 3.10), all obligations
of the Company in respect of the payment of principal of the Debt Securities of
such series shall terminate. Notwithstanding any other provision of this Section
5.02, if an Event of Default specified in Section 5.01(5) or (6) occurs, then
the Default Amount on the Debt Securities then Outstanding shall ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with respect to Debt
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum in the
Currency in which such Debt Securities are denominated (except as otherwise
provided pursuant to Section 3.01 or 3.10) sufficient to pay
(A) all overdue installments of interest on all Debt Securities or
all overdue payments with respect to any Coupons of such series,
(B) the principal of (and premium, if any, on) any Debt Securities
of such series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates
prescribed therefor in such Debt Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest on each Debt Security
of such series or upon overdue payments on any Coupons of such series
at the Overdue Rate, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and any other amounts due the Trustee
under Section 6.07; provided, however, that all sums payable under
this clause (D) shall be paid in Dollars;
and
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(2) All Events of Default with respect to Debt Securities of such
series, other than the nonpayment of the principal of Debt Securities of
such series which has become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 5.13.
No such rescission and waiver shall affect any subsequent default or impair any
right consequent thereon.
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of interest on
any Debt Security or any payment with respect to any Coupons when such
interest or payment becomes due and payable and such default continues for
a period of 30 days,
(2) default is made in the payment of principal of (or premium, if
any, on) any Debt Security at the Maturity thereof, or
(3) default is made in the making or satisfaction of any sinking fund
payment or analogous obligation when the same becomes due pursuant to the
terms of the Debt Securities of any series,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Debt Securities or of such Coupons, the amount then due and
payable on such Debt Securities or matured Coupons, for the principal (and
premium, if any) and interest, if any, and, to the extent that payment of such
interest shall be legally enforceable, interest upon the overdue principal (and
premium, if any) and upon overdue installments of interest, at the Overdue Rate;
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel and
any other amounts due the Trustee under Section 6.07.
If the Company fails to pay such amount forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Debt Securities and Coupons,
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such Debt
Securities and Coupons wherever situated.
If an Event of Default with respect to Debt Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Debt Securities and Coupons
of such series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
Section 5.04. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceedings, or any voluntary or involuntary case under the Federal
bankruptcy laws, as now or hereafter constituted, relative to the Company or any
other obligor upon the Debt Securities and Coupons, if any, of a particular
series or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of such Debt
Securities shall then be due and payable as therein expressed or by declaration
of acceleration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount of principal (or, if the
Debt Securities of such series are Discount Securities, such portion of the
principal amount as may be due and payable with respect to such series
in accordance with Section 5.02) (and premium, if any) and interest owing and
unpaid in respect of the Debt Securities and Coupons, if any, of such 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 the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents
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and counsel) and any other amounts due the Trustee under Section 6.07 and of
the Holders of such Debt Securities and Coupons, if any, allowed in such
judicial proceeding, and
(ii) to collect and receive any moneys or other securities or property
payable or deliverable upon the conversion or exchange of the Debt Securities
or on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian, liquidator, sequestrator (or
other similar official) in any such proceeding is hereby authorized by each such
Holder to make such payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly to such Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.07.
To the extent permitted by applicable law, if the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel and any other amounts due the Trustee under Section 6.07 hereof out
of the estate in any such proceeding shall be denied for any reason, payment of
the same shall be secured by a lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties which the
Holders of the Debt Securities may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or
otherwise.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Debt
Securities and any Coupons of such series or the rights of any Holder thereof,
or to authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
Section 5.05. Trustee May Enforce Claims Without Possession of Debt
Securities.
All rights of action and claims under this Indenture or the Debt Securities
and the Coupons, if any, of any series may be prosecuted and enforced by the
Trustee without the possession of any of such Debt Securities or Coupons or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name, as trustee of an
express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Debt Securities or Coupons in respect of which such judgment has been
recovered.
Section 5.06. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (and premium,
if any) or interest, upon presentation of the Debt Securities or Coupons of any
series in respect of which money has been collected and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 6.07.
SECOND: To the payment of the amounts then due and unpaid for principal of
(and premium, if any) and interest on the Debt Securities or Coupons of such
series, in respect of which or for the benefit of which such money has been
collected ratably, without preference or priority of any kind, according to
the amounts due and payable on such Debt Securities or Coupons for principal
(and premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Company or as the Company may direct.
Section 5.07. Limitation on Suits.
No Holder of any Debt Security or Coupon of any series shall have any right
to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to such series;
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(2) the Holders of not less than 25% in principal amount of the Outstanding
Debt Securities of such series shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable indemnity
against the costs, expenses and liabilities which may be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Debt Securities of such series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other such
Holders or of the Holders of Outstanding Debt Securities or Coupons of any other
series, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all of such
Holders. For the protection and enforcement of the provisions of this Section
5.07, each and every Holder of Debt Securities or Coupons of any series and the
Trustee for such series shall be entitled to such relief as can be given at law
or in equity.
Section 5.08. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, each Holder of any
Debt Security or of any Coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Section 3.07) interest on such Debt Security or Coupon on the
respective Stated Maturity or Maturities expressed in such Debt Security or
Coupon (or, in the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment and interest thereon, and such
right shall not be impaired or adversely affected without the consent of each
such Holder.
Section 5.09. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case the Company, the Trustee and the
Holders shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative.
Except as otherwise expressly provided elsewhere in this Indenture, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of Default or any acquiescence
therein. Every right and remedy given by this Indenture or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
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Section 5.12. Control by Holders.
The Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Debt Securities of such series, provided, that
(1) such direction shall not be in conflict with any rule of law or with
this Indenture;
(2) subject to the provisions of Section 6.01, the Trustee shall have the
right to decline to follow any such direction if the Trustee in good faith
shall, by a Responsible Officer or Responsible Officers of the Trustee,
determine that the proceeding so directed would be unjustly prejudicial to the
Holders of Debt Securities of such series not joining in any such direction or
that the proceeding so directed may involve the Trustee in personal liability;
and
(3) the Trustee may take any other action deemed proper by the Trustee which
is not inconsistent with such direction.
Section 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any series may on behalf of the Holders of all
the Debt Securities of any such series waive, by notice to the Trustee and the
Company, any past default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of (or premium, if any) or interest on
any Debt Security of such series, or in the payment of any sinking fund
instalment or analogous obligation with respect to the Debt Securities of such
series, or
(2) in respect of a covenant or provision hereof which pursuant to Article
Eleven cannot be modified or amended without the consent of the Holder of each
Outstanding Debt Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of the Debt Securities of such series under this Indenture, but no such waiver
shall extend to any subsequent or other default or Event of Default or impair
any right consequent thereon.
Section 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Debt Security
or any Coupon 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 other than the Trustee of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant, but the provisions of this Section 5.14
shall not apply to any suit instituted by the Trustee, to any suit instituted by
any Holder or group of Holders holding in the aggregate more than 10% in
principal amount of the Outstanding Debt Securities of any series, or to any
suit instituted by any Holder of a Debt Security or Coupon for the enforcement
of the payment of the principal of (or premium, if any) or interest on such Debt
Security or the payment of any Coupon on or after the respective Stated Maturity
or Maturities expressed in such Debt Security or Coupon (or, in the case of
redemption, on or after the Redemption Date).
Section 5.15. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power
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herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with respect to
the Debt Securities of any series,
(1) the Trustee undertakes to perform such duties and only such duties as
are specifically set forth in this Indenture and no others, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of any such
certificates or opinions which by any provisions hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the requirements
of this Indenture.
(b) In case an Event of Default with respect to Debt Securities of any
series has occurred and is continuing, the Trustee shall, with respect to the
Debt Securities of such series, 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.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this subsection shall not be construed to limit the effect of
subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it with respect to Debt Securities of
any series in good faith in accordance with the direction of the Holders of
not less than a majority in principal amount of the Outstanding Debt
Securities of such series relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture; and
(4) the Trustee shall not be required to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to it.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section
6.01.
Section 6.02. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder known to the
Trustee with respect to Debt Securities or Coupons, if any, of any series, the
Trustee shall give notice to all Holders of Debt Securities and Coupons, if any,
of such series of such default hereunder, unless such default shall have been
cured or waived prior to such time; provided, however, that, except in the case
of a default in the payment of the principal of (or premium, if any) or interest
on any Debt Security or Coupon, if any, of such series or in the payment of any
sinking fund installment with respect to Debt Securities of such series, the
Trustee shall be protected in
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withholding such notice if and so long as Responsible Officers of the Trustee in
good faith determine that the withholding of such notice is in the interest of
the Holders of Debt Securities and of Coupons, if any, of such series; and
provided, further, that in the case of any default of the character specified in
Section 5.01(4) with respect to Debt Securities or Coupons, if any, of such
series no such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time or both would become, an
Event of Default with respect to Debt Securities of such series.
Notice given pursuant to this Section 6.02 with respect to Registered
Securities shall be transmitted by mail:
(1) to all Registered Holders, as the names and addresses of the
Registered Holders appear in the Security Register;
(2) to such Holders of Bearer Securities of any series as have within
two years preceding such transmission, filed their names and addresses with
the Trustee for such series for that purpose; and
(3) to each Holder of a Debt Security of any series whose name and
address appear in the information preserved at the time by the Trustee in
accordance with Section 7.02(a) of this Indenture.
Notice given pursuant to this Section 6.02 with respect to Bearer
Securities shall be given as provided in Section 1.05.
Section 6.03. Certain Rights of Trustee.
Except as otherwise provided in Section 6.01 and Section 6.02:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request, Company Order or Officers'
Certificate and any resolution of the Board of Directors shall be sufficiently
evidenced by a Board Resolution, except as may be otherwise provided in Article
Three hereof;
(c) whenever in the administration of this Indenture the Trustee shall deem
it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may require an Officers' Certificate or (to the extent
that the proof or establishment of such matter requires a legal conclusion) an
Opinion of Counsel, or both and may, in the absence of bad faith on its part,
rely upon such Officers' Certificate or Opinion of Counsel;
(d) the Trustee may consult with counsel of its selection and the advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders of Debt Securities of any series pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;
and
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(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
Section 6.04. Not Responsible for Recitals or Issuance of Debt Securities.
The statements and recitals contained herein and in the Debt Securities or
Coupons, if any, of any series and in any other document in connection with the
sale of Debt Securities or Coupons, if any, of any series or pursuant to this
Indenture, except the Trustee's certificates of authentication, shall be taken
as the statements of the Company, and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debt Securities or Coupons, if any, of
any series. The Trustee shall not be (i) accountable for the use or application
by the Company of any Debt Securities or Coupons, if any, of any series or the
proceeds thereof, (ii) accountable for any money paid to the Company, or upon
the Company's direction, if made under and in accordance with any provision of
this Indenture, or (iii) responsible for the use or application of any money
received by any Paying Agent other than itself.
Section 6.05. May Hold Debt Securities.
The Trustee, any Paying Agent, the Security Registrar or any other agent of
the Company, in its individual or any other capacity, may become the owner or
pledgee of Debt Securities or Coupons, and, subject to Sections 6.08 and 6.13,
may otherwise deal with the Company or its Affiliates with the same rights it
would have if it were not Trustee, Paying Agent, Security Registrar or such
other agent.
Section 6.06. Money Held in Trust.
Money in any Currency held by the Trustee or any Paying Agent in trust
hereunder need not be segregated from other funds except to the extent required
by law. Neither the Trustee nor any Paying Agent shall be under any liability
for interest on any money received by it hereunder except as otherwise agreed
with the Company.
Section 6.07. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation in
Dollars as the Company and the Trustee shall from time to time agree in
writing for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) to reimburse the Trustee in Dollars upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses, disbursements and advances of its
agents and counsel), except any such expense, disbursement or advance as
may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee in Dollars for, and to hold it harmless
against, any and all loss, liability, damage, claims or expense, including
taxes (other than taxes based upon, measured by or determined by income of
the Trustee), incurred without negligence or bad faith on its part, arising
out of or in connection with the acceptance or administration of this trust
or performance of its duties hereunder, including the costs and expenses of
enforcing this Indenture against the Company (including Section 6.07) and
of defending itself against any claim (whether asserted by any Holder or
the Company) or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
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The Trustee shall notify the Company promptly of any claim for which it may
seek indemnity. Failure by the Trustee to so promptly notify the Company,
however, shall not relieve the Company of its obligations under this paragraph
except to the extent such failure shall have materially prejudiced the Company.
The Company may at its option defend the claim and, if it so defends, then the
Trustee shall cooperate in the defense and the Company shall not be responsible
for any expenses of the Trustee's counsel thereafter. If the Trustee reasonably
determines, based on written advice of counsel, that it may have available to it
defenses which are in conflict with any defenses available to the Company, then
the Trustee may have one separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel. The Company need not pay for any
settlement made without its consent.
As security for the performance of the obligations of the Company under
this Section 6.07, the Trustee shall have a claim prior to the Debt Securities
and Coupons, if any, upon all property and funds held or collected by the
Trustee, as such, hereunder, except funds held in trust for the benefit of the
Holders for the payment of amounts due on the Debt Securities and Coupons.
The obligations of the Company under this Section 6.07 to compensate and
indemnify the Trustee for expenses, disbursements and advances shall constitute
additional indebtedness under this Indenture and shall survive the satisfaction
and discharge of this Indenture and the resignation or removal of the Trustee.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 5.01(5) or 5.01(6) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any bankruptcy law.
Section 6.08. Disqualification; Conflicting Interests.
The Trustee for the Debt Securities of any series issued hereunder shall
be subject to the provisions of Section 310(b) of the Trust Indenture Act
during the period of time provided for therein. In determining whether the
Trustee has a conflicting interest as defined in Section 310(b) of the Trust
Indenture Act with respect to the Debt Securities of any series, there shall be
excluded from this Indenture with respect to the Debt Securities of such series
Debt Securities other than the Debt Securities of such series. Nothing herein
shall prevent the Trustee from filing with the Commission the application
referred to in the second to last paragraph of Section 310(b) of the Trust
Indenture Act.
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Section 6.09. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States,
any State thereof or the District of Columbia, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $75,000,000, subject to supervision or examination by Federal, State or
District of Columbia authority and eligible to act as Trustee hereunder in
compliance with Section 310(a)(1) of the Trust Indenture Act. If such
corporation 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 6.09, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. Neither the Company nor any
person directly or indirectly controlling, controlled by, or under common
control with the Company shall serve as Trustee upon any Debt Securities.
Section 6.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article Six shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the Debt Securities
of one or more series by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee, the Company or the Holders of not less than a majority of the
Outstanding Debt Securities of such series may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Debt
Securities of such series.
(c) The Trustee may be removed at any time with respect to the Debt
Securities of any series and a successor Trustee appointed by Act of the Holders
of not less than a majority in principal amount of the Outstanding Debt
Securities of such series, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.08 with respect
to the Debt Securities of any series after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Debt Security
of such series for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.09 with
respect to the Debt Securities of any series and shall fail to resign after
written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or
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control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Debt Securities, or (ii) subject to Section 5.14,
any Holder who has been a bona fide Holder of a Debt Security of any 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 for the Debt Securities of such series.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Debt Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Debt Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Debt Securities of
one or more or all of such series and that at any time there shall be only one
Trustee with respect to the Debt Securities of any particular series) and shall
comply with the applicable requirements of Section 6.11. If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Debt Securities of any series
shall be appointed by Act of the Holders of a majority in principal amount of
the Outstanding Debt Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with respect to the
Debt Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect to the
Debt Securities of any series shall have been so appointed by the Company or the
Holders of such series and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Debt Security of such
series for at least six months may, subject to Section 5.14, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Debt
Securities of such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Debt Securities of any series and each
appointment of a successor Trustee with respect to the Debt Securities of any
series in the manner and to the extent provided in Section 1.05 to the Holders
of Debt Securities of such series. Each notice shall include the name of the
successor Trustee with respect to the Debt Securities of such series and the
address of its corporate trust office.
(g) Notwithstanding the replacement of the Trustee pursuant to this Section
6.10, the Company's obligations under Section 6.07 shall continue for the
benefit of the resigned or removed Trustee to the extent such obligations arose
prior to such replacement or out of actions actually or allegedly taken or
omitted to be taken by the Trustee prior to such replacement.
Section 6.11. Acceptance of Appointment by Successor.
(a) In the case of an appointment hereunder of a successor Trustee with
respect to all Debt Securities, each such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee, but, on request of
the Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee, and shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder, subject nevertheless to its
claim, if any, provided for in Section 6.07.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Debt Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Debt
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Debt Securities of that or those series to which the
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appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Debt Securities, shall contain such provisions
as shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Debt
Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) 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 any such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust and that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any other trust or trusts hereunder administered by any
other such Trustee; and upon the execution and delivery of any such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Debt Securities of that or those series to which the appointment of such
successor Trustee relates, but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Debt Securities of that or those series to which the
appointment of such successor Trustee relates, subject nevertheless to its
claim, if any, provided for in Section 6.07.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section 6.11, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under the
Trust Indenture Act and this Article Six.
Section 6.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be otherwise qualified and eligible under
the Trust Indenture Act and this Article Six, without the execution or filing of
any paper or any further act on the part of any of the parties hereto. In case
any Debt Securities shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver the Debt
Securities so authenticated with the same effect as if such successor Trustee
had itself authenticated such Debt Securities. In case any Debt Securities shall
not have been authenticated by such predecessor Trustee, any such successor
Trustee may authenticate and deliver such Debt Securities in its own name with
the full force and effect which this Indenture provides for the certificate of
authentication of the Trustee.
Section 6.13. Preferential Collection of Claims Against Company.
If and when the Trustee shall be, or shall become, a creditor, directly or
indirectly, secured or unsecured, of the Company (or any other obligor upon the
Debt Securities), the Trustee shall be subject to the provisions of Section
311 of the Trust Indenture Act.
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Section 6.14. Appointment of Authenticating Agent.
As long as any Debt Securities of a series remain Outstanding, the Trustee
may appoint an authenticating agent (the "Authenticating Agent"), for such
period as the Trustee, with the concurrence of the Company (which concurrence
shall not be unreasonably withheld), shall elect, for such series of Debt
Securities to act as its agent on its behalf and subject to its direction in
connection with the authentication and delivery upon original issue, exchange,
registration of transfer or partial redemption or partial purchase or otherwise
of each series of Debt Securities for which it is serving as Trustee. Debt
Securities of each such series authenticated by such Authenticating Agent shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by such Trustee. Wherever reference is made
in this Indenture to the authentication and delivery of Debt Securities of any
series by the Trustee for such series or to the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee for such series by an Authenticating Agent for
such series and a certificate of authentication executed on behalf of such
Trustee by such Authenticating Agent. Such Authenticating Agent shall at all
times be a corporation organized and doing business under the laws of the United
States of America or of any State, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for purposes of this Section 6.14, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section 6.14, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section 6.14.
Any corporation into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to all series of Debt Securities for which it served as Authenticating
Agent without the execution or filing of any paper or any further act on the
part of the Trustee for such series or such Authenticating Agent, provided that
such corporation shall be otherwise eligible under this Section 6.14. Any
Authenticating Agent may at any time, and if it shall cease to be eligible
shall, resign by giving written notice of resignation to the Trustee and to the
Company. The Trustee may, with the concurrence of the Company (which concurrence
shall not be unreasonably withheld) at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such Authenticating
Agent and the Company
Upon receiving such a notice of resignation or upon such a termination, or
in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.14 with
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respect to one or more or all series of Debt Securities, the Trustee for such
series shall appoint a successor Authenticating Agent, and shall provide notice
of such appointment to all Holders of Debt Securities of such series in the
manner and to the extent provided in Section 1.05. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
rights, powers, duties and responsibilities of its predecessor hereunder, with
like effect as if originally named as Authenticating Agent. The Company agrees
to pay to each Authenticating Agent from time to time reasonable compensation
for its services. The Authenticating Agent for the Debt Securities of any
series shall have no responsibility or liability for any action taken by it as
such in good faith and without negligence at the direction of the Trustee for
such series.
If an appointment with respect to one or more series is made pursuant to
this Section, the Debt Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the series of Debt Securities issued under the within
mentioned Indenture.
Chemical Bank, as Trustee
By:
As Authenticating Agent
By:
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee with
respect to Registered Securities of each series for which it acts as Trustee:
(a) semi-annually on a date not more than 15 days after each Regular Record
Date with respect to an Interest Payment Date, if any, for the Registered
Securities of such series (or on semi-annual dates in each year to be determined
pursuant to Section 3.01 if the Registered Securities of such series do not bear
interest), a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Registered Holders as of the date 15 days next
preceding each such Regular Record Date (or such semi-annual dates, as the case
may be); and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished; provided, however, that if and so long as the Trustee shall be the
Security Registrar for such series, no such list need be furnished.
The Company shall also be required to furnish to the Trustee at all such
times set forth above all information in the possession or control of the
Company or any of its Paying Agents other than the Trustee as to the names and
addresses of the Holders of Bearer Securities of all series; provided, however,
that the Company shall have no obligation to investigate any matter relating to
any Holders of Bearer Securities of any series.
Section 7.02. Preservation of Information; Communication to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of Holders contained
in the most recent list furnished to the Trustee as provided in
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Section 7.01, received by it in the capacity of Paying Agent (if so acting)
hereunder and filed with it within the two preceding years pursuant to Section
7.03.
The Trustee may destroy any list furnished to it as provided in Section
7.01 upon receipt of a new list so furnished, destroy any information received
by it as Paying Agent (if so acting) hereunder upon delivering to itself as
Trustee, not earlier than 45 days after an Interest Payment Date, a list
containing the names and addresses of the Holders obtained from such information
since the delivery of the next previous list, if any, destroy any list delivered
to itself as Trustee which was compiled from information received by it as
Paying Agent (if so acting) hereunder upon the receipt of a new list so
delivered, and destroy not earlier than two years after filing, any information
filed with it pursuant to Section 7.03.
(b) If three or more Holders (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 Debt 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 Debt
Securities of a particular series (in which case the applicants must hold Debt
Securities of such series) or with all Holders of Debt Securities with respect
to their rights under this Indenture or under the Debt Securities and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election, either
(i) afford such applicants access to the information preserved at the time
by the Trustee in accordance with Section 7.02(a), or
(ii) inform such applicants as to the approximate number of Holders of Debt
Securities of such series or of all Debt Securities, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Trustee in accordance with Section 7.02(a), and as to the approximate cost of
mailing to such Holders the form of proxy or other communication, specified in
such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon written request of such applicants, mail to
the Holders of Debt Securities of such series or all Holders, as the case may
be, whose names and addresses appear in the information preserved at the time by
the Trustee in accordance with Section 7.02(a), 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,
unless within five days after such tender, the Trustee shall mail to such
applicants and file with the Commission, together with a copy of the material to
be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the Holders of
Debt Securities of such series or all Holders, as the case may be, or would be
in violation of applicable law. Such written statement shall specify the basis
of such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies of
such material to all such Holders with reasonable promptness after the entry of
such order and the renewal of such tender.
(c) Every Holder of Debt Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in accordance with
Section 7.02(b), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of
mailing of any material pursuant to a request made under Section 7.02(b).
Section 7.03. Reports by Trustee.
(a) Within 60 days after May 15, 1996 and on or before May 15 in each year
thereafter, so long as any Debt Securities are Outstanding hereunder, the
Trustee shall transmit by mail to Holders of Debt Securities of any series such
reports concerning the Trustee and its actions under this Indenture as may be
required pursuant to the Trust Indenture Act, including, without limitation,
Section 313 thereof, in the manner provided pursuant thereto.
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(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any Debt
Securities of such series are listed, with the Commission and also with the
Company. The Company will notify the Trustee when any series of Debt Securities
are listed on any stock exchange.
Section 7.04. Reports by Company.
The Company will:
(1) file with the Trustee, within 15 days after the Company 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 Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended; or, if the Company is not
required to file information, documents or reports pursuant to either of
said Sections, then it will 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, as amended, in respect of a security listed and
registered on a national securities exchange as may be required from time
to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit to all Holders of Debt Securities, in the manner and to
the extent provided in Section 7.03, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraphs (1) and
(2) of this Section 7.04 as may be required by rules and regulations
prescribed from time to time by the Commission.
ARTICLE EIGHT
CONCERNING THE HOLDERS
Section 8.01. Acts of Holders.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent or proxy duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments and a writing appointing
any such agent or proxy are delivered to the Trustee, and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments. Whenever in
this Indenture it is provided that the Holders of a specified percentage in
aggregate principal amount of the Outstanding Debt Securities of any series may
take any Act, the fact that the Holders of such specified percentage have joined
therein may be evidenced (a) by the instrument or instruments executed by
Holders in person or by agent or proxy appointed in writing and a writing
appointing any such agent or proxy, or (b) by the record of Holders voting in
favor thereof at any meeting of such Holders duly called and held in accordance
with the provisions of Article Nine, or (c) by a combination of such instrument
or instruments and any such record of such a meeting of Holders.
Section 8.02. Proof of Ownership; Proof of Execution of Instruments by
Holders.
The ownership of Registered Securities of any series shall be proved by the
Security Register for such series or by a certificate of the Security Registrar
for such series.
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The ownership of Bearer Securities shall be proved by production of such
Bearer Securities or by a certificate executed by any bank or trust company,
which certificate shall be dated and shall state that on the date thereof a
Bearer Security bearing a specified identifying number or other mark was
deposited with or exhibited to the Person executing such certificate by the
Person named in such certificate, or by any other proof of possession reasonably
satisfactory to the Trustee. The holding by the Person named in any such
certificate of any Bearer Security specified therein shall be presumed to
continue for a period of one year unless at the time of determination of such
holding (1) another certificate bearing a later date issued in respect of the
same Bearer Security shall be produced, (2) such Bearer Security shall be
produced by some other Person, (3) such Bearer Security shall have been
registered on the Security Register, if, pursuant to Section 3.01, such Bearer
Security can be so registered, or (4) such Bearer Security shall have been
cancelled or paid.
Subject to the provisions of Sections 6.01, 6.03 and 9.05, proof of the
execution of a writing appointing an agent or proxy and of the execution of any
instrument by a Holder or his agent or proxy shall be sufficient and conclusive
in favor of the Trustee and the Company if made in the following manner:
The fact and date of the execution by any such Person of any instrument may
be proved by the certificate of any notary public or other officer authorized to
take acknowledgements of deeds, that the Person executing such instrument
acknowledged to him the execution thereof, or by an affidavit of a witness to
such execution sworn to before any such notary or other such officer. Where such
execution is by an officer of a Corporation or association or a member of a
partnership on behalf of such Corporation, association or partnership, as the
case may be, or by any other Person acting in a representative capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority.
The record of any Holders' meeting shall be proved in the manner provided
in Section 9.06.
The Trustee may in any instance require further proof with respect to any
of the matters referred to in this Section 8.02 so long as the request is a
reasonable one.
Section 8.03. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the Trustee may
deem and treat the Person in whose name any Registered Security is registered on
the Security Register as the owner of such Registered Security for the purpose
of receiving payment of the principal of (and premium, if any) and (subject to
Section 3.07) interest, if any, on such Registered Security and for all other
purposes whatsoever, whether or not such Registered Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary. The Company, the Trustee, and any
agent of the Company or the Trustee may treat the Holder of any Bearer Security
or of any Coupon as the absolute owner of such Bearer Security or Coupon for the
purposes of receiving payment thereof or on account thereof and for all other
purposes whatsoever, whether or not such Bearer Security or Coupon be overdue,
and neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary. All payments made to any Holder, or
upon his order, shall be valid, and, to the extent of the sum or sums paid,
effectual to satisfy and discharge the liability for moneys payable upon such
Debt Security or Coupon.
Section 8.04. Revocation of Consents; Future Holders Bound.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.01, of the taking of any Act by the Holders of the
percentage in aggregate principal amount of the Outstanding Debt Securities
specified in this Indenture in connection with such Act, any Holder of a Debt
Security the number, letter or other distinguishing symbol of which is shown by
the evidence to be included in the Debt Securities the Holders of which have
consented to such Act may, by filing written notice with the Trustee at the
Corporate Trust Office and upon proof of ownership as provided in Section 8.02,
revoke such Act so far as it concerns such Debt Security. Except as aforesaid,
any such Act taken by the Holder of any Debt Security shall be conclusive and
binding upon such Holder and upon all future Holders of such Debt Security and
all past, present and future Holders of Coupons, if any, appertaining thereto
and of any Debt Securities and Coupons issued on registration of transfer or in
lieu thereof or in exchange or substitution therefor, irrespective of whether or
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not any notation in regard thereto is made upon such Debt Security or Coupons or
such other Debt Securities or Coupons.
ARTICLE NINE
HOLDERS' MEETINGS
Section 9.01. Purposes of Meetings.
A meeting of Holders of any or all series may be called at any time and
from time to time pursuant to the provisions of this Article Nine for any of the
following purposes:
(1) to give any notice to the Company or to the Trustee for such
series, or to give any directions to the Trustee for such series, or to
consent to the waiving of any default or Event of Default hereunder and its
consequences, or to take any other action authorized to be taken by Holders
pursuant to any of the provisions of Article Five;
(2) to remove the Trustee for such series and appoint a successor
Trustee pursuant to the provisions of Article Six;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 11.02; or
(4) to take any other action authorized to be taken by or on behalf of
the Holders of any specified aggregate principal amount of the Outstanding
Debt Securities of any one or more or all series, as the case may be, under
any other provision of this Indenture or under applicable law.
Section 9.02. Call of Meetings by Trustee.
The Trustee for any series may at any time call a meeting of Holders of
such series to take any action specified in Section 9.01, to be held at such
time or times and at such place or places as the Trustee for such series shall
determine. Notice of every meeting of the Holders of any series, setting forth
the time and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be given to Holders of such series in the
manner and to the extent provided in Section 1.05. Such notice shall be given
not less than 20 days nor more than 90 days prior to the date fixed for the
meeting.
Section 9.03. Call of Meetings by Company or Holders.
In case at any time the Company, pursuant to a Board Resolution, or the
Holders of at least 33 1/3% in aggregate principal amount of the Outstanding
Debt Securities of a series or of all series, as the case may be, shall have
requested the Trustee for such series to call a meeting of Holders of any or all
such series by written request (in the form of a Company Request, in the case of
the Company), setting forth in reasonable detail the action proposed to be taken
at the meeting, and the Trustee shall not have given the notice of such meeting
within 20 days after the receipt of such request, then the Company or such
Holders may determine the time or times and the place or places for such
meetings and may call such meetings to take any action authorized in Section
9.01, by giving notice thereof as provided in Section 9.02.
Section 9.04. Qualifications for Voting.
To be entitled to vote at any meeting of Holders a Person shall be (a) a
Holder of a Debt Security of the series with respect to which such meeting is
being held or (b) a Person appointed by an instrument in writing as agent or
proxy by such Holder. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders shall be the Persons entitled to vote at such
meeting and their counsel and any representatives of the Trustee for the series
with respect to which such meeting is being held and its counsel and any
representatives of the Company and its counsel.
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Section 9.05. Quorum; Regulations.
The Persons entitled to vote a majority in principal amount of the
Outstanding Debt Securities of a series shall constitute a quorum for a meeting
of Holders of Debt Securities of such series; provided, however, that if any
action is to be taken at such meeting with respect to a consent, waiver,
request, demand, notice, authorization, direction or other action which this
Indenture expressly provides may be made, given or taken by the Holders of not
less than a specified percentage in principal amount of the Outstanding Debt
Securities of a series, the Persons holding or representing such specified
percentage in principal amount of the Outstanding Debt Securities of such series
shall constitute a quorum. In the absence of a quorum within 30 minutes of the
time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Debt Securities of such series, be dissolved. In any other
case, the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 9.02, except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Debt Securities of such series which shall constitute a quorum.
Except as limited by the proviso to the first paragraph of Section 11.02,
any resolution presented to a meeting or adjourned meeting duly reconvened at
which a quorum is present as aforesaid may be adopted by the affirmative vote of
the Holders of not less than a majority in principal amount of the Outstanding
Debt Securities of that series; provided, however, that, except as limited by
the proviso to the first paragraph of Section 11.02, any resolution with respect
to any consent, waiver, request, demand, notice, authorization, direction or
other action which this Indenture expressly provides may be made, given or taken
by the Holders of not less than a specified percentage in principal amount of
the Outstanding Debt Securities of a series may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as aforesaid
only by the affirmative vote of the Holders of not less than such specified
percentage in principal amount of the Outstanding Debt Securities of such
series.
Any resolution passed or decision taken at any meeting of Holders of Debt
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Debt Securities of such series and the Coupons, if
any, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section, if any action is
to be taken at a meeting of Holders of Debt Securities of any series with
respect to any consent, waiver, request, demand, notice, authorization,
direction or other action that this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage in principal amount of
all Outstanding Debt Securities affected thereby, or of the Holders of such
series and one or more additional series:
(i) there shall be no minimum quorum requirement for such meeting; and
(ii) the principal amount of the Outstanding Debt Securities of such series
that vote in favor of such consent, waiver, request, demand, notice,
authorization, direction or other action shall be taken into account in
determining whether such request, demand, authorization, direction, notice,
consent, waiver or other action has been made, given or taken under this
Indenture.
Notwithstanding any other provisions of this Indenture, the Trustee for any
series may make such reasonable regulations as it may deem advisable for any
meeting of Holders of such series, in regard to proof of the holding of Debt
Securities of such series and of the appointment of proxies, and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of such series as provided in Section 9.03 at which a
quorum is present, in which case the Company or the Holders calling the meeting,
as the case may be,
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shall in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by a majority vote of the
meeting.
Subject to the provisos in the definition of "Outstanding," at any meeting
each Holder of a Debt Security of the series with respect to which such meeting
is being held or proxy therefor shall be entitled to one vote for each $1,000
principal amount (or such other amount as shall be specified as contemplated by
Section 3.01) of Debt Securities of such series held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Debt Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the meeting shall
have no right to vote other than by virtue of Outstanding Debt Securities of
such series held by him or instruments in writing duly designating him as the
person to vote on behalf of Holders of Debt Securities of such series. Any
meeting of Holders with respect to which a meeting was duly called pursuant to
the provisions of Section 9.02 or 9.03 at which a quorum is present may be
adjourned from time to time by a majority of such Holders present and the
meeting may be held as so adjourned without further notice.
Section 9.06. Voting.
The vote upon any resolution submitted to any meeting of Holders with
respect to which such meeting is being held shall be by written ballots on which
shall be subscribed the signatures of such Holders or of their representatives
by proxy and the serial number or numbers of the Debt Securities held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Holders shall be taken
and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more individuals having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was transmitted as provided
in Section 9.02. The record shall show the serial numbers of the Debt Securities
voting in favor of or against any resolution. The record shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one of the duplicates shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 9.07. No Delay of Rights by Meeting.
Nothing contained in this Article Nine shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Holders or any rights
expressly or impliedly conferred hereunder to make such call, any hindrance or
delay in the exercise of any right or rights conferred upon or reserved to the
Trustee or to any Holder under any of the provisions of this Indenture or of the
Debt Securities or Coupons, if any, of any series.
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 10.01. Company May Consolidate, etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Corporation
or sell or convey its properties and assets substantially as an entirety to any
Person, unless:
(1) the Corporation formed by such consolidation or into which the Company
is merged or the Person which acquires by sale or conveyance the properties
and assets of the Company substantially as an entirety (the "successor
corporation") shall be a corporation organized and existing under the laws of
the United States or any State or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment of
the principal of (and premium, if any) and interest on all the Outstanding
Debt Securities and Coupons, if any, and the performance of every covenant of
this Indenture on the part of the Company to be performed or observed;
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(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have occurred and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that such consolidation, merger,
sale or conveyance and such supplemental indenture comply with this Article
Ten and all other provisions of this Indenture and that all conditions
precedent herein provided for relating to such transaction have been
complied with.
For purposes of this Section, "sell or convey its properties and assets
substantially as an entirety" shall mean properties and assets contributing in
the aggregate to at least 80% of the Company's total consolidated revenues as
reported in the Company's last available periodic financial report (quarterly or
annual, as the case may be) filed with the Commission.
Section 10.02. Successor Corporation Substituted.
Upon any consolidation with or merger into any other Corporation, or any
sale or conveyance of the properties and assets of the Company substantially as
an entirety in accordance with Section 10.01, the successor Corporation formed
by such consolidation or into which the Company is merged or to which such sale
or conveyance is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same effect
as if such successor Corporation had been named as the Company herein, and
thereafter the predecessor Corporation shall be relieved of all obligations and
covenants under this Indenture and the Debt Securities and Coupons, if any.
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
Section 11.01. Supplemental Indentures Without Consent of Holders.
Without prior notice to or the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
reasonably satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Corporation to the rights of
the Company, and the assumption by such successor of the covenants and
obligations of the Company, herein and in the Debt Securities and Coupons,
if any, contained; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Debt Securities and the Coupons, if any,
appertaining thereto (and if such covenants are to be for the benefit of
less than all series, stating that such covenants are expressly being
included solely for the benefit of such series), or to surrender any right
or power herein conferred upon the Company; or
(3) to add any additional Events of Default (and if such Events of
Default are to be applicable to less than all series, stating that such
Events of Default are expressly being included solely to be applicable to
such series); or
(4) to add or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of Debt
Securities of any series in bearer form, registrable or not registrable,
and with or without Coupons, to permit Bearer Securities to be issued in
exchange for Registered Securities, to permit Bearer Securities to be
issued in exchange for Bearer Securities of other authorized denominations
or to permit the issuance of Debt Securities of any series in
uncertificated form, provided that any such action shall not adversely
affect the interests of the Holders of Debt Securities of any series or any
related Coupons in any material respect; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Outstanding Debt Security or Coupon of any
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series created prior to the execution of such supplemental indenture which
is entitled to the benefit of such provision and as to which such
supplemental indenture would apply; or
(6) to secure the Debt Securities or to provide that any of the
Company's obligations under the Debt Securities or this Indenture shall be
guaranteed; or
(7) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Article Four or Fifteen,
provided that any such action shall not adversely affect the interests of
the Holders of Debt Securities of such series or any other series of Debt
Securities or any related Coupons in any material respect; or
(8) to establish the form or terms of Debt Securities and Coupons, if
any, of any series as permitted by Sections 2.01 and 3.01; or
(9) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to one or more series of Debt
Securities 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; or
(10) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, to eliminate any conflict between the terms of this Indenture and
the Debt Securities and the Trust Indenture Act, or to make any other
provisions with respect to matters or questions arising under this
Indenture which shall not be inconsistent with any provision of this
Indenture; provided such other provisions shall not adversely affect the
interests of the Holders of Outstanding Debt Securities or Coupons, if any,
of any series created prior to the execution of such supplemental indenture
in any material respect; or
(11) to change or modify any of the provisions of this Indenture;
provided that any such changes or modifications shall not adversely affect
the interests of the Holders of Outstanding Debt Securities or Coupons, if
any, of any series created prior to the execution of such supplemental
indenture in any material respect.
Section 11.02. Supplemental Indentures With Consent of Holders.
With the written consent of the Holders of not less than a majority in
principal amount of the Outstanding Debt Securities of each series affected by
such supplemental indenture voting separately, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture of such
Debt Securities or Coupons, if any; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Debt
Security of each such series affected thereby,
(1) change the Stated Maturity of the principal of, or installment of
interest, if any, on, any Debt Security, or reduce the principal amount
thereof or the interest thereon or any premium payable upon redemption
thereof, or change the Stated Maturity of or reduce the amount of any
payment to be made with respect to any Coupon, or change the Currency or
Currencies in which the principal of (and premium, if any) or interest on
such Debt Security is denominated or payable, or reduce the amount of the
principal of a Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
5.02, or adversely affect the right of repayment or repurchase, if any, at
the option of the Holder, or reduce the amount of, or postpone the date
fixed for, any payment under any sinking fund or analogous provisions for
any Debt Security, or impair the right to institute suit for the
enforcement of any payment on or after the Stated Maturity thereof (or, in
the case of redemption, on or after the Redemption Date), or limit the
obligation of the Company to maintain a paying agency outside the United
States for payment on Bearer Securities as provided in Section 12.03; or
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(2) reduce the percentage in principal amount of the Outstanding Debt
Securities of any series, the consent of whose Holders is required for any
supplemental indenture, or the consent of whose Holders is required for any
waiver of compliance with certain provisions of this Indenture or certain
defaults or Events of Default hereunder and their consequences provided for
in this Indenture; or
(3) modify any of the provisions of this Section, Section 5.13 or
Section 12.09, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Debt Security of each
series affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section 11.02
and Section 12.09, or the deletion of this proviso, in accordance with the
requirements of Sections 6.11 and 11.01(7).
It shall not be necessary for any Act of Holders under this Section 11.02
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture with respect to one or more particular series of
Debt Securities and Coupons, if any, or which modifies the rights of the Holders
of Debt Securities and Coupons of such series with respect to such covenant or
other provision, shall be deemed not to affect the rights under this Indenture
of the Holders of Debt Securities and Coupons, if any, of any other series.
Section 11.03. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article Eleven or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 6.01) shall be fully protected in relying
upon, in addition to the Opinion of Counsel required by Section 1.02, an Opinion
of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture and that it will be valid and binding
on the Company in accordance with its terms. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which adversely affects
the Trustee's immunities or its material rights and duties under this Indenture
or otherwise.
Section 11.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article Eleven,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Debt Securities and Coupons theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
Section 11.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article Eleven shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 11.06. Reference in Debt Securities to Supplemental Indentures.
Debt Securities and Coupons, if any, of any series authenticated and
delivered after the execution of any supplemental indenture pursuant to this
Article Eleven may, and shall if required by the Trustee, bear a notation in
form approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Debt Securities and Coupons,
if any, of any series so modified as to conform, in the opinion of the Trustee
and the Board of Directors, to any such supplemental indenture may be prepared
and executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Debt Securities and Coupons, if any, of such series.
Failure to make the appropriate notation or issue a new Debt Security or Coupon
shall not affect the validity and effect of such supplemental indenture or of
such new Debt Security or Coupon.
Section 11.07. Notice of Supplemental Indenture.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to Section 11.02, the Company shall transmit, in
the manner and to the extent provided in Section 1.05, to all Holders of any
series of the Debt Securities affected thereby, a notice setting forth in
general terms the
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substance of such supplemental indenture. Any failure of the Company to mail
such note, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
ARTICLE TWELVE
COVENANTS
Section 12.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of Debt
Securities and Coupons, if any, that it will duly and punctually pay the
principal of (and premium, if any) and interest on the Debt Securities in
accordance with the terms of the Debt Securities, the Coupons and this
Indenture. Unless otherwise specified as contemplated by Section 3.01 with
respect to any series of Debt Securities or except as otherwise provided in
Section 3.06, any interest due on Bearer Securities on or before Maturity shall
be payable only upon presentation and surrender of the several Coupons for such
interest installments as are evidenced thereby as they severally mature. If so
provided in the terms of any series of Debt Securities established as provided
in Section 3.01, the interest, if any, due in respect of any temporary Global
Note or permanent Global Note, together with any additional amounts payable in
respect thereof, as provided in the terms and conditions of such Debt Security,
shall be payable only upon presentation of such Debt Security to the Trustee or
Paying Agent for notation thereon of the payment of such interest.
Section 12.02. Officer's Certificate as to Default.
The Company will deliver to the Trustee, on or before a date not more than
four months after the end of each fiscal year of the Company (which on the date
hereof is the calendar year) ending after the date hereof, a certificate signed
by the principal executive officer, principal financial officer or principal
accounting officer stating to the best knowledge of the signer thereof the
Company is in compliance with all covenants and conditions under this Indenture,
and, if the Company shall be in default, specifying all such defaults and the
nature thereof, including what actions are being taken or proposed to be taken
with respect thereto, of which the signer may have knowledge. For purposes of
this Section 12.02, such compliance shall be determined without regard to any
period of grace or requirement of notice provided under this Indenture.
Section 12.03. Maintenance of Office or Agency.
if Debt Securities of a series are issuable only as Registered Securities,
the Company will maintain or cause to be maintained in each Place of Payment for
such series an office or agency where Debt Securities of that series may be
presented or surrendered for payment, where Debt Securities of that series may
be surrendered for registration of transfer or exchange or redemption and where
notices and demands to or upon the Company in respect of the Debt Securities of
that series and this Indenture may be served. if Debt Securities of a series are
issuable as Bearer Securities, the Company will maintain (A) in the Borough of
Manhattan, The City and State of New York, an office or agency where any
Registered Securities of that series, if any, may be presented or surrendered
for payment, where any Registered Securities of that series, if any, may be
surrendered for registration of transfer, where Debt Securities of that series
may be surrendered for exchange or redemption, where notices and demands to or
upon the Company in respect of the Debt Securities of that series and this
Indenture may be served and where Bearer Securities of that series and related
Coupons may be presented or surrendered for payment in the circumstances
described in the following paragraph (and not otherwise), (B) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
which is located outside the United States, an office or agency where Bearer
Securities of that series and related Coupons may be presented and surrendered
for payment (including payment of any additional amounts payable on Securities
of that series, if so provided pursuant to Section 3.01); provided, however,
that if the Debt Securities of that series are listed on The Stock Exchange of
the United Kingdom and the Republic of Ireland, the Luxembourg Stock Exchange or
any other stock exchange located outside the United States and such stock
exchange shall so require, the Company will maintain a Paying Agent for the Debt
Securities of that series in London, Luxembourg or any other required city
located outside the United States, as the case may be, so long as the Debt
Securities of that series are listed on such exchange, and (C) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
located outside
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the United States an office or agency where any Registered Securities of that
series may be surrendered for registration of transfer, where Debt Securities of
that series may be surrendered for exchange and redemption and where notices and
demands to or upon the Company in respect of the Debt Securities of that series
and this Indenture may be served. The Company will give prompt written notice to
the Trustee of the locations, and any change in the locations, of such offices
or agencies. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of that
series and the related Coupons may be presented and surrendered for payment at
the offices specified in the applicable Debt Security, and the Company hereby
appoints the Trustee, or in the case of Bearer Securities, such other agent as
is specified pursuant to Section 3.01, as its agent to receive all
presentations, surrenders, notices and demands.
No payment of principal, premium or interest on Bearer Securities shall be
made at any office or agency of the Company in the United States or by check
mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, that, if
the Debt Securities of a series are denominated and payable in Dollars, payment
of principal of and any premium and interest on any Bearer Security (including
any additional amounts payable on Securities of such series, if so provided
pursuant to Section 3.01) shall be made at the office of the Company's Paying
Agent in the Borough of Manhattan, The City and State of New York, if (but only
if) payment in Dollars of the full amount of such principal, premium, interest
or additional amounts, as the case may be, at all offices or agencies outside
the United States maintained for the purpose by the Company in accordance with
this Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may also from time to time designate different or additional
offices or agencies to be maintained for such purposes (in or outside of such
Place of Payment), and may from time to time rescind any such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligations described in the preceding paragraph. The
Company will give prompt written notice to the Trustee of any such additional
designation or rescission of designation and any change in the location of any
such different or additional office or agency.
Section 12.04. Money for Debt Securities; Payments to Be Held in Trust.
If the Company or any of its Affiliates shall at any time act as the
Company's Paying Agent with respect to any series of Debt Securities and
Coupons, if any, it will, on or before each due date of the principal of (and
premium, if any) or interest on any of the Debt Securities of such series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal (and premium, if any) or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided, and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents with respect to
any series of Debt Securities and Coupons, it will, prior to each due date of
the principal (and premium, if any) or interest on any Debt Securities of such
series, deposit with any such Paying Agent a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due, such sum to be held in trust
for the benefit of the Persons entitled thereto, and (unless any such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
The Company will cause each Paying Agent with respect to any series of Debt
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section 12.04 , that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Debt Securities of such series in trust for
the benefit of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Debt Securities of such series) in the making of any
payment of principal (and premium, if any) or interest on the Debt
Securities of such series; and
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(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Subject to any applicable abandoned property law, any money deposited with
the Trustee or any Paying Agent, or then held by the Company, in trust for the
payment of the principal of (and premium, if any) or interest on any Debt
Security of any series and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall be
paid to the Company upon Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Debt Security or Coupon
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be transmitted in the manner and to the extent
provided by Section 1.05, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such notification, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 12.05. Corporate Existence.
Subject to Article Ten, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors of the Company shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company.
Section 12.06. Purchase of Debt Securities by Company.
If the Debt Securities of a series are listed on The Stock Exchange of the
United Kingdom and the Republic of Ireland and such stock exchange shall so
require, the Company will not purchase any Debt Securities of that series by
private treaty at a price (exclusive of expenses and accrued interest) which
exceeds 120% of the mean of the nominal quotations of the Debt Securities of
that series as shown in The Stock Exchange Daily Official List for the last
trading day preceding the date of purchase.
Section 12.07. Limitation on Liens.
The Company will not create or assume and will not permit a Restricted
Subsidiary to create or assume, otherwise than in favor of the Company or a
Subsidiary, any mortgage, pledge or other lien or encumbrance upon any Principal
Property or upon any stock of any Subsidiary or any indebtedness of any
Subsidiary to the Company or such Restricted Subsidiary, whether now owned or
hereafter acquired, without making effective provision whereby the Outstanding
Debt Securities of any applicable series will be secured by such mortgage,
pledge or other lien or encumbrance equally and ratably with any and all other
obligations and indebtedness thereby secured, so long as any such other
obligations and indebtedness shall be so secured (provided, that for the purpose
of providing such equal and ratable security, the principal amount of
Outstanding Debt Securities of any series of Discount Securities shall be such
portion of the principal amount as may be specified in the terms of that
series); provided, however, that the foregoing covenant shall not be applicable
to the following:
(a) (i) any mortgage, pledge or other lien or encumbrance on any such
property existing on the date of this Indenture or at the time a Person owning
a Principal Property shall become a Restricted Subsidiary, or (ii) any
mortgage, pledge or other lien or encumbrance on any such property now owned
or hereafter acquired or constructed by the Company or a Restricted
Subsidiary, or on which property so owned or acquired or constructed is
located, and created prior to, contemporaneously with or within 120 days
after,
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such improvement or acquisition or construction or the commencement of
commercial operation of such property, to secure or provide for the payment of
any part of the cost of improvements or purchase or construction price of such
property, or (iii) the acquisition by the Company or a Restricted Subsidiary
of any such property subject to any mortgage, pledge or other lien or
encumbrance upon such property existing at the time of acquisition thereof,
whether or not assumed by the Company or such Restricted Subsidiary, or (iv)
any mortgage, pledge or other lien or encumbrance existing on the shares of
stock or indebtedness of a Person at the time such Person shall become a
Subsidiary; provided that, in the case of clause (i) of this Section 12.07(a),
the lien of any such mortgage, pledge or other lien or encumbrance does not
spread to cover other property and, in the case of clauses (ii) through (iv)
of this Section 12.07(a), the lien of any such mortgage, pledge or other lien
or encumbrance does not spread to property owned prior to such acquisition or
construction or to other property thereafter acquired or constructed, in each
case, other than improvements on such property or acquired or constructed
property, as the case may be;
(b) any mortgage, pledge or other lien or encumbrance created for the sole
purpose of extending, renewing or refunding any mortgage, pledge or other lien
or encumbrance permitted by subsection (a) of this Section 12.07; provided,
however, that the principal amount of indebtedness secured thereby shall not
exceed the principal amount of indebtedness so secured at the time of such
extension, renewal or refunding and that such extension, renewal or refunding
mortgage, pledge or other lien or encumbrance shall be limited to all or any
part of the same property that secured the mortgage, pledge or other lien or
encumbrance extended, renewed or refunded, or to other property of the Company
or its Restricted Subsidiaries not subject to the limitations of this Section;
(c) liens for taxes or assessments or governmental charges or levies not
then due and delinquent or the validity of which is being contested in good
faith, and against which an adequate reserve has been established; liens on
any such property created in connection with pledges or deposits to secure
public or statutory obligations or to secure performance in connection with
bids or contracts; materialmen's, mechanic's, carrier's, workmen's,
repairmen's or other like liens; or liens on any such property created in
connection with deposits to obtain the release of such liens; liens on any
such property created in connection with deposits to secure surety, stay,
appeal or customs bonds; liens created by or resulting from any litigation or
legal proceeding which is being contested in good faith by appropriate
proceedings; leases and liens, rights of reverter and other possessory rights
of the lessor thereunder; zoning restrictions, easements, rights-of-way or
other restrictions on the use of real property or minor irregularities in the
title thereto; and any other liens and encumbrances similar to those described
in this subsection, the existence of which does not, in the opinion of the
Company, materially impair the use by the Company or a Restricted Subsidiary
of the affected property in the operation of the business of the Company or a
Restricted Subsidiary, or the value of such property for the purposes of such
business;
(d) any contracts for production, research or development with or for the
Government, directly or indirectly, providing for advance, partial or progress
payments on such contracts and for a lien, paramount to all other liens, upon
money advanced or paid pursuant to such contracts, or upon any material or
supplies in connection with the performance of such contracts to secure such
payments to the Government; and liens or other evidences of interest in favor
of the Government, paramount to all other liens, on any equipment, tools,
machinery, land or buildings hereafter constructed, installed or purchased by
the Company or a Restricted Subsidiary primarily for the purpose of
manufacturing or producing any product or performing any development work,
directly or indirectly, for the Government to secure indebtedness incurred and
owing to the Government for the construction, installation or purchase of such
equipment, tools, machinery, land or buildings. For the purpose of this
subsection (d), "Government" shall mean the Government of the United States
and any department, agency or political subdivision thereof and the government
of any foreign country with which the Company or its Subsidiaries is permitted
to do business under applicable law and any department, agency or political
subdivision thereof;
(e) any mortgage, pledge or other lien or encumbrance created after the date
of this Indenture on any property leased to or purchased by the Company or a
Restricted Subsidiary after that date and securing, directly or indirectly,
obligations issued by a State, a territory or a possession of the United
States, or any political subdivision of any of the foregoing, or the District
of Columbia, to finance the cost of acquisition or
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cost of construction of such property, provided that the interest paid on such
obligations is entitled to be excluded from gross income of the recipient
pursuant to Section 103(a)(1) of the Code (or any successor to such provision)
as in effect at the time of the issuance of such obligations; and
(f) any mortgage, pledge or other lien or encumbrance not otherwise
permitted under this Section 12.07; provided, the aggregate amount of
indebtedness secured by all such mortgages, pledges or other liens or
encumbrances does not exceed 15% of the Company's Consolidated Net Tangible
Assets as at the end of the Company's most recently completed accounting
period preceding the creation or assumption of such mortgage, pledge or other
lien or encumbrance (reduced by any Attributable Debt with respect to any Sale
and Leaseback Transaction permitted under clause (c) of, but not otherwise
permitted by under, Section 12.08).
Section 12.08 Limitation on Sale and Leaseback Transactions.
The Company will not enter into and will not permit a Restricted Subsidiary
to enter into any Sale and Leaseback Transaction with respect to any Principal
Property owned by the Company or such Restricted Subsidiary on the date of this
Indenture, unless (a) such Sale and Leaseback Transaction involves a lease for a
term of not more than three years; (b) such Sale and Leaseback Transaction is
between the Company or such Restricted Subsidiary and a Subsidiary; (c) the
Company or such Restricted Subsidiary would be entitled to incur indebtedness
secured by a mortgage, pledge or other lien or encumbrance on such Principal
Property involved in such Sale and Leaseback Transaction at least equal in
amount to the Attributable Debt with respect to such Sale and Leaseback
Transaction pursuant to clause (f) of Section 12.07 without equally and ratably
securing the Debt Securities of any applicable series pursuant to such covenant;
or (d) the proceeds of such Sale and Leaseback Transaction are at least equal to
the fair market value thereof (as determined in good faith by the Board of
Directors) and the Company applies an amount equal to the greater of the net
proceeds of such sale or the Attributable Debt with respect to such Sale and
Leaseback Transaction within 180 days of such sale to either (or a combination)
of (i) the retirement (other than the mandatory retirement, mandatory prepayment
or sinking fund payment or by payment at maturity) of Funded Debt of the Company
or a Restricted Subsidiary (other than Funded Debt that is subordinated to the
Debt Securities) or (ii) the purchase, construction or development of other
comparable property.
Section 12.09. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 12.05, 12.07 and 12.08 (and, if so
specified pursuant to Section 3.01, any other covenant not set forth herein and
specified pursuant to Section 3.01 to be applicable to the Debt Securities of
any series, except as otherwise provided pursuant to Section 3.01) with respect
to the Debt Securities of any series if before the time for such compliance the
Holders of at least a majority in principal amount of the Outstanding Debt
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent expressly so waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE THIRTEEN
REDEMPTION OF DEBT SECURITIES
Section 13.01. Applicability of Article.
Debt Securities of any series which are redeemable before their Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified pursuant to Section 3.01 for Debt Securities of any series) in
accordance with this Article Thirteen.
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Section 13.02. Election to Redeem; Notice to Trustee.
The election of the Company to redeem (or, in the case of Discount
Securities, to permit the Holders to elect to surrender for redemption) any Debt
Securities shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company of less than all of the Debt Securities of any
series pursuant to Section 13.03, the Company shall, at least 90 days before the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Debt Securities of such series to be redeemed. In the
case of any redemption of Debt Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Debt Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate and Opinion of Counsel evidencing compliance with such
restrictions.
Section 13.03. Selection by Trustee of Debt Securities to Be Redeemed.
Except in the case of a redemption in whole of the Bearer Securities or the
Registered Securities of such series, if less than all the Debt Securities of
any series are to be redeemed at the election of the Company, the particular
Debt Securities to be redeemed shall be selected not more than 60 days prior to
the Redemption Date by the Trustee, from the Outstanding Debt Securities of such
series not previously called for redemption, by such method as the Trustee shall
deem fair and appropriate (provided, that such method complies with the rules of
any national securities exchange or quotation system on which the Debt
Securities of such series are then listed) and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Debt Securities of such series or any integral multiple
thereof) of the principal amount of Debt Securities of such series in a
denomination larger than the minimum authorized denomination for Debt Securities
of such series pursuant to Section 3.02 in the Currency in which the Debt
Securities of such series are denominated. The portions of the principal amount
of Debt Securities so selected for partial redemption shall be equal to the
minimum authorized denominations for Debt Securities of such series pursuant to
Section 3.02 in the Currency in which the Debt Securities of such series are
denominated or any integral multiple thereof, except as otherwise set forth in
the applicable form of Debt Securities. In any case when more than one
Registered Security of such series is registered in the same name, the Trustee
in its discretion may treat the aggregate principal amount so registered as if
it were represented by one Registered Security of such series.
The Trustee shall promptly notify the Company in writing of the Debt
Securities selected for redemption and, in the case of any Debt Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Debt Securities shall relate, in
the case of any Debt Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Debt Security which has been or is to be
redeemed.
Section 13.04. Notice of Redemption.
Notice of redemption shall be given by the Company, or at the Company's
request, by the Trustee in the name and at the expense of the Company, not less
than 30 days and not more than 60 days prior to the Redemption Date to the
Holders of Debt Securities of any series to be redeemed in whole or in part
pursuant to this Article Thirteen, in the manner provided in Section 1.05. At
the Company's written request, the Trustee shall give the notice of redemption
in the Company's name and at the Company's expense provided, however, that the
Company shall deliver to the Trustee, at least 35 days or such shorter period as
the Trustee may agree to in writing prior to the Redemption Date, an Officers'
Certificate requesting that the Trustee give such notice and setting forth the
information to be stated in such notice as provided in this Section 13.04. A
copy of such notice shall be given to the Trustee on the same day that the
notice is given to the Holders of such Debt Securities. Any notice so given
shall be conclusively presumed to have been duly given, whether or not the
Holder receives such notice. Failure to give such notice, or any defect in such
notice to the Holder of any Debt Security of a series designated for redemption,
in whole or in part, shall not affect the sufficiency of any notice of
redemption with respect to the Holder of any other Debt Security of such series.
All notices of redemption shall state:
(1) the Redemption Date,
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(2) the Redemption Price,
(3) the CUSIP Number,
(4) the name and address of the Paying Agent
(5) that Debt Securities of such series are being redeemed by the
Company pursuant to provisions contained in this Indenture or the terms of
the Debt Securities of such series or a supplemental indenture establishing
such series, if such be the case, and naming such provisions, together with
a brief statement of the facts permitting such redemption,
(6) if less than all Outstanding Debt Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Debt Securities to be redeemed and
that, after the Redemption Date, upon surrender of such Debt Securities, a
new Debt Security or Securities in principal amount equal to the unredeemed
portion will be issued,
(7) that on the Redemption Date the Redemption Price will become due
and payable upon each such Debt Security to be redeemed, and that, unless
the Company defaults in making such redemption payment, interest thereon,
if any, shall cease to accrue on and after said date,
(8) that, unless otherwise specified in such notice, Coupon Securities
of any series, if any, surrendered for redemption must be accompanied by
all Coupons maturing subsequent to the date fixed for redemption, failing
which the amount of any such missing Coupon or Coupons will be deducted
from the Redemption Price,
(9) the Place or Places of Payment where such Debt Securities are to
be surrendered for payment of the Redemption Price, and
(10) that the redemption is for a sinking fund, if such is the case.
Section 13.05. Deposit of Redemption Price.
Not later than on Business Day prior to the Redemption Date for any Debt
Securities, the Company shall deposit with the Trustee or with a Paying Agent
(or, if the Company or an Affiliate is acting as the Company's own Paying Agent,
segregate and hold in trust as provided in Section 12.04) an amount of money in
the Currency or Currencies in which such Debt Securities are denominated (except
as provided pursuant to Section 3.01) sufficient to pay the Redemption Price of
such Debt Securities or any portions thereof which are to be redeemed on the
Redemption Date.
Section 13.06. Debt Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, any Debt Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price in the Currency in which the Debt Securities of such series are
payable (except as otherwise specified pursuant to Section 3.01 or 3.10), and
from and after such date (unless the Company shall default in the payment of the
Redemption Price) such Debt Securities shall cease to bear interest. Upon
surrender of any such Debt Security for redemption in accordance with said
notice, such Debt Security shall be paid by the Company at the Redemption Price;
provided, however, that installments of interest on Bearer Securities whose
Stated Maturity is on or prior to the Redemption Date shall be payable only at
an office or agency located outside the United States (except as otherwise
provided in Section 12.03) and, unless otherwise specified as contemplated by
Section 3.01, only upon presentation and surrender of Coupons for such interest;
and provided, further, that, unless otherwise specified as contemplated by
Section 3.01, installments of interest on Registered Securities which have a
Stated Maturity on or prior to the Redemption Date for such Debt Securities
shall be payable according to the terms of such Debt Securities and the
provisions of Section 3.07.
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If any Debt Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Debt Security.
If any Coupon Security surrendered for redemption shall not be accompanied
by all Coupons appertaining thereto maturing on or after the Redemption Date,
the Redemption Price for such Coupon Security may be reduced by an amount equal
to the face amount of all such missing Coupons. If thereafter the Holder of such
Coupon shall surrender to any Paying Agent outside the United States any such
missing Coupon in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the amount so
deducted. The surrender of such missing Coupon or Coupons may be waived by the
Company and the Trustee, if there be furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless.
Section 13.07. Debt Securities Redeemed in Part.
Any Debt Security which is to be redeemed only in part shall be surrendered
at the address set forth in the notice of redemption with, if the Company, the
Security Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing, and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Debt Security without service
charge, a new Debt Security or Debt Securities of the same series, of like tenor
and form, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Debt Security so surrendered, and, in the case of a
Coupon Security, with appropriate Coupons attached. In the case of a Debt
Security providing appropriate space for such notation, at the option of the
Holder thereof, the Trustee, in lieu of delivering a new Debt Security or Debt
Securities as aforesaid, may make a notation on such Debt Security of the
payment of the redeemed portion thereof.
ARTICLE FOURTEEN
SINKING FUNDS
Section 14.01. Applicability of Article.
The provisions of this Article Fourteen shall be applicable to any sinking
fund for the retirement of Debt Securities of a series except as otherwise
specified pursuant to Section 3.01 for Debt Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Debt 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 Debt Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Debt Securities of any
series, the amount of any cash sinking fund payment may be subject to reduction
as provided in Section 14.02. Each sinking fund payment shall be applied to the
redemption of Debt Securities of any series as provided for by the terms of Debt
Securities of such series.
Section 14.02. Satisfaction of Mandatory Sinking Fund Payments with Debt
Securities.
Subject to Section 14.03, in lieu of making all or any part of a mandatory
sinking fund payment with respect to any Debt Securities of a series in cash,
the Company may at its option deliver to the Trustee Outstanding Debt Securities
of such series (other than any previously called for redemption or presented for
repayment at the option of the Holder) theretofore purchased or otherwise
acquired by the Company, together in the case of any Bearer Securities of such
series with all unmatured Coupons, if any, appertaining thereto, and (2) receive
credit for the principal amount of previously Outstanding Debt Securities of
such series which have been previously purchased or otherwise acquired by the
Company and delivered to the Trustee by the Company or the Outstanding Debt
Securities of such series which have been redeemed either at the election of the
Company pursuant to the terms of the Debt Securities of such series or through
the application of
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permitted optional sinking fund payments pursuant to the terms of the Debt
Securities of such series, together in the case of any Bearer Securities of such
series with all unmatured Coupons, if any, appertaining thereto, in each case in
satisfaction of all or any part of any mandatory sinking fund payment with
respect to the Debt Securities of such series required to be made pursuant to
the terms of the Debt Securities of such series as provided for by the terms of
such series; provided that the Trustee shall have received evidence reasonably
satisfactory to the Trustee, from the Security Registrar or the Company, that
the Debt Securities of such series shall not have been previously so credited.
The Debt Securities of such series shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in the Debt Securities
of such series for redemption through operation of the sinking fund and the
amount of such mandatory sinking fund payment shall be reduced accordingly.
Section 14.03. Redemption of Debt Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Debt Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash in the Currency or Currencies in
which the Debt Securities of such series are denominated (except as otherwise
provided pursuant to Section 3.01) and the portion thereof, if any, which is to
be satisfied by delivering and crediting Debt Securities of such series pursuant
to Section 14.02. In the case of the failure of the Company to deliver such
certificate, or if the Trustee shall have received evidence reasonably
satisfactory to it from the Security Registrar or the Company that Debt
Securities to be delivered in payment of such sinking fund obligation shall
have been previously so credited, the sinking fund payment due on the next
succeeding sinking fund payment date for such series shall be paid entirely in
cash and shall be sufficient to redeem the principal amount of the Debt
Securities of such series subject to a mandatory sinking fund payment without
the right to deliver or credit Debt Securities as provided in Section 14.02 and
without the right to make any optional sinking fund payment with respect to such
series at such time.
Any sinking fund payment or payments (mandatory or optional) made in cash
plus any unused balance of any preceding sinking fund payments made with respect
to the Debt Securities of any particular series shall be applied by the Trustee
(or by the Company or an Affiliate if the Company or an Affiliate is acting as
the Company's Paying Agent) on the sinking fund payment date on which such
payment is made (or, if such payment is made before a sinking fund payment date,
on the sinking fund payment date immediately following the date of such payment)
to the redemption of Debt Securities of such series at the Redemption Price
specified in such Debt Securities with respect to the sinking fund. Any sinking
fund moneys not so applied or allocated by the Trustee (or by the Company or an
Affiliate if the Company or an Affiliate is acting as the Company's Paying
Agent) to the redemption of Debt Securities shall be added to the next sinking
fund payment received by the Trustee (or if the Company or an Affiliate is
acting as the Company's Paying Agent, segregated and held in trust as provided
in Section 12.04) for such series and, together with such payment (or such
amount so segregated) shall be applied in accordance with the provisions of this
Section 14.03. Any and all sinking fund moneys with respect to the Debt
Securities of any particular series held by the Trustee (or if the Company or an
Affiliate is acting as the Company's own Paying Agent, segregated and held in
trust as provided in Section 12.04) on the last sinking fund payment date with
respect to Debt Securities of such series and not held for the payment or
redemption of particular Debt Securities of such series shall be applied by the
Trustee (or by the Company or an Affiliate if acting as the Company's Paying
Agent), together with other moneys, if necessary, to be deposited (or
segregated) sufficient for the purpose, to the payment of the principal of the
Debt Securities of such series at Maturity.
The Trustee shall select or cause to be selected the Debt Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section
13.03 and the Company shall cause notice of the redemption thereof to be given
in the manner provided in Section 13.04. Such notice having been duly given, the
redemption of such Debt Securities shall be made upon the terms and in the
manner stated in Section 13.06.
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On or before each sinking fund payment date, the Company shall pay to the
Trustee (or, if the Company or an Affiliate is acting as the Company's Paying
Agent, the Company or an Affiliate shall segregate and hold in trust as provided
in Section 12.04) in cash a sum, in the Currency or Currencies in which Debt
Securities of such series are denominated (except as provided pursuant to
Sections 3.01 or 3.10), equal to the principal (and premium, if any) and any
interest accrued to the Redemption Date for Debt Securities or portions thereof
to be redeemed on such sinking fund payment date pursuant to this Section.
ARTICLE FIFTEEN
DEFEASANCE
Section 15.01. Applicability of Article.
If, pursuant to Section 3.01, provision is made for the defeasance of Debt
Securities of a series, and if the Debt Securities of such series are Registered
Securities and denominated and payable only in Dollars (except as provided
pursuant to Section 3.01) then the provisions of this Article Fifteen shall be
applicable except as otherwise specified pursuant to Section 3.01 for Debt
Securities of such series. Defeasance provisions, if any, for Debt Securities
denominated in a Foreign Currency or Currencies or for Bearer Securities may be
specified pursuant to Section 3.01.
Section 15.02. Defeasance Upon Deposit of Moneys or U.S. Government
Obligations.
At the Company's option, either (a) the Company shall be deemed to have
been Discharged (as defined below) from its obligations with respect to Debt
Securities of any series ("legal defeasance option") or (b) the Company shall
cease to be under any obligation to comply with any term, provision or condition
set forth in Sections 10.01, 12.07 and 12.08 with respect to Debt Securities of
any series (and, if so specified pursuant to Section 3.01, any other obligation
of the Company or restrictive covenant added for the benefit of such series
pursuant to Section 3.01) ("covenant defeasance option") at any time after the
applicable conditions set forth below have been satisfied:
(1) the Company 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
Debt Securities of such series (i) money in an amount, or (ii) U.S.
Government Obligations (as defined below) 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 any mandatory sinking fund payments) of and premium,
if any, and interest on, the Outstanding Debt Securities of such series on
the dates such installments of interest or principal and premium are due;
(2) such deposit shall not cause the Trustee with respect to the Debt
Securities of that series to have a conflicting interest for purposes of
the Trust Indenture Act with respect to the Debt Securities of any series;
(3) the Company delivers to the Trustee an Opinion of Counsel, in form
and substance reasonably satisfactory to the Trustee, to the effect that
the trust resulting from the deposit does not constitute, or is qualified
as, a regulated investment company under the Investment Act of 1940;
(4) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Debt Securities as contemplated by this
Article Fifteen have been complied with.
(5) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(6) if the Debt Securities of such series are then listed on any
national securities exchange, the Company shall have delivered to the
Trustee an Opinion of Counsel and a letter or other document from
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such exchange to the effect that the Company's exercise of its option under
this Section would not cause such Debt Securities to be delisted;
(7) no Event of Default or event (including such deposit) which, with
notice or lapse of time or both, would become an Event of Default with
respect to the Debt Securities of such series shall have occurred and be
continuing on the date of such deposit and, with respect to the legal
defeasance option only, no Event of Default under Section 5.01(5) or
Section 5.01(6) or event which with the giving of notice or lapse of time,
or both, would become an Event of Default under Section 5.01(5) or Section
5.01(6) shall have occurred and be continuing on the 91st day after such
date; and
(8) the Company shall have delivered to the Trustee an Opinion of
Counsel or a ruling from the Internal Revenue Service to the effect that
such deposit, defeasance or discharge shall not cause the Holders of the
Debt Securities of such series to recognize income, gain or loss for
Federal income tax purposes.
Notwithstanding the foregoing, if the Company exercises its covenant defeasance
option and an Event of Default under Section 5.01(5) or Section 5.01(6) or event
which with the giving of notice or lapse of time, or both, would become an Event
of Default under Section 5.01(5) or Section 5.01(6) shall have occurred and be
continuing on the 91st day after the date of such deposit, the obligations of
the Company referred to under the definition of covenant defeasance option with
respect to such Debt Securities shall be reinstated in full.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Debt Securities of such series and to have satisfied all the obligations under
this Indenture relating to the Debt Securities of such series (and the Trustee,
at the expense of the Company, shall execute proper instruments acknowledging
the same), except (A) the rights of Holders of Debt Securities of such series to
receive, from the trust fund described in clause (1) above, payment of the
principal of (and premium, if any) and interest on such Debt Securities when
such payments are due, (B) the Company's obligations with respect to the Debt
Securities of such series under Sections 3.04, 3.05, 3.06, 12.03 and 15.03 and
under Section 6.07 of this Indenture and (C) the rights, powers, trusts, duties
and immunities of the Trustee hereunder.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged, or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case under clause (i) or (ii), are not callable
or redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation or a specific payment of interest on or
principal of any such U.S. Government Obligation held by such custodian for the
account of the holder of a depository receipt; provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligation evidenced by such
depository receipt.
Section 15.03. Deposited Moneys and U.S. Government Obligations to Be Held
in Trust.
All moneys and U.S. Government Obligations deposited with the Trustee
pursuant to Section 15.02 in respect of Debt Securities of a series shall be
held in trust and applied by it, in accordance with the provisions of such Debt
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company or an Affiliate acting as the Company's
Paying Agent) as the Trustee may determine, to the Holders of such Debt
Securities, of all sums due and to become due thereon for principal (and
premium, if any) and interest, if any, but such money need not be segregated
from other funds except to the extent required by law.
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71
Section 15.04. Repayment to Company.
The Trustee and any Paying Agent shall promptly pay or return to the
Company upon Company Request any moneys or U.S. Government Obligations held by
them at any time pursuant to Section 15.02 which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect the
legal defeasance option or the covenant defeasance option, as the case may be,
in accordance with this Article.
Section 15.05. Further Assurances.
Upon the request of the Trustee, the Company will promptly execute and
deliver such additional instruments and do such further acts as in the opinion
of the Trustee may be reasonably necessary or proper to carry out more
effectively its obligations under this Indenture.
Section 15.06. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this Article Fifteen by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Debt
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to this Article Fifteen until such time as the Trustee or Paying Agent
is permitted to apply all such money or U.S. Government Obligations in
accordance with this Article Fifteen; provided, however, that, if the Company
has made any payment of interest on or principal of any Debt Securities because
of the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Debt Securities to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.
------------------
This instrument may be executed in any number of counterparts, each of
which so executed shall constitute an original and all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
HUBBELL INCORPORATED
By:
Title:
Attest:
Title:
Seal
CHEMICAL BANK, as Trustee
By:
Title:
Attest:
Title:
Seal
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On the day of , 1995, before me personally came ,
to me known, who, being by me duly sworn, did depose and say that he resides at
;
that he is of HUBBELL INCORPORATED,
one of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation, and that he signed his name thereto
by like authority.
--------------------------------------
Notary Public
SEAL
68
74
On the day of , 1995, before me personally came ,
to me known, who, being by me duly sworn, did depose and say that he resides at
;
that he is of CHEMICAL BANK,
one of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation, and that he signed his name thereto
by like authority.
--------------------------------------
Notary Public
SEAL
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75
EXHIBIT A
[FORMS OF CERTIFICATION]
[FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR INTEREST PRIOR TO AN EXCHANGE DATE]
CERTIFICATE
------------------------
[INSERT TITLE OR SUFFICIENT DESCRIPTION
OF SECURITIES TO BE DELIVERED]
This certificate is delivered pursuant to the Indenture, dated as of
, 1995 (as amended, supplemented or otherwise modified from time to
time, the "Indenture"), between Hubbell Incorporated (the "Company") and
Chemical Bank, as Trustee. Unless otherwise defined herein, terms defined in the
Indenture are used herein as so defined.
This is to certify that as of the date hereof and except as set forth below
principal amount of the above captioned securities (the "Debt
Securities") of the Company held by you for our account (i) is owned by
person(s) that are not United States person(s) (as defined below), (ii) is owned
by United States person(s) that are (a) foreign branches of United States
financial institutions (as defined in Section 1.165-12(c)(1)(v) of the United
States Treasury regulations) ("financial institutions") purchasing for their own
account or for resale, or (b) United States person(s) who acquired the Debt
Securities through foreign branches of United States financial institutions and
who hold the Debt Securities through such United States financial institutions
on the date hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise the Company or the Company's agent that it will comply with
the requirements of Section 165(j)(3)(A), (B) or (C) of the United States
Internal Revenue Code of 1986, as amended, and the Treasury regulations
thereunder), or (iii) is owned by United States or foreign financial
institution(s) for the purpose of resale during the restricted period (as
defined in Section 1.163-5(c)(2)(i)(D)(7) of the United States Treasury
regulations), and in addition if the owner of the Debt Securities is a United
States or foreign financial institution described in clause (iii) above (whether
or not also described in clause (i) or (ii)) this is to further certify that
such financial institution has not acquired the Debt Securities for the purpose
of resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
We undertake to advise you promptly by tested telex on or prior to the date
on which you intend to submit your certification relating to the beneficial
interest in the temporary Global Note held by you for our account in accordance
with your operating procedures if any applicable statement herein is not correct
on such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
This certificate excepts and does not relate to principal amount of
Debt Securities held by you for our account as to which we are not able to
provide a certificate in this form. We understand that exchange of such portion
of the temporary Global Note representing Debt Securities for definitive bearer
Debt Securities or interests in a permanent Global Note cannot be made until we
are able to provide a certificate in this form.
We understand that this certificate is required in connection with certain
tax laws and regulations of the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
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76
"United States person" means any citizen or resident of the United States,
any corporation, partnership or other entity created or organized in or under
the laws of the United States and any estate or trust the income of which is
subject to United States federal income taxation regardless of its source.
"United States" means the United States of America (including the States and the
District of Columbia) and its "possessions" which include Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana
Islands.
Dated: ,
[To be dated no earlier than the
10th day before the Exchange Date]
By:
As, or as agent for, the beneficial
owner(s) of the portion of the
temporary Global Note to which this
certificate relates.
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77
EXHIBIT B
[FORM OF CERTIFICATE TO BE GIVEN BY EURO-CLEAR AND
CEDEL, S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL NOTE]
CERTIFICATE
------------------------------------
[INSERT TITLE OR SUFFICIENT DESCRIPTION
OF SECURITIES TO BE DELIVERED]
This certificate is delivered pursuant to the Indenture, dated as of
, 1995 (as amended, supplemented or otherwise modified from
time to time, the "Indenture"), between Hubbell Incorporated (the "Company") and
Chemical Bank, as Trustee. Unless otherwise defined herein, terms defined in the
Indenture are used herein as so defined.
The undersigned certifies that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
to the effect set forth in the Indenture as of the date hereof,
principal amount of the above-captioned securities (the "Debt
Securities") of the Company (i) is owned by person(s) that are not United States
person(s) (as defined below), (ii) is owned by United States person(s) that are
(a) foreign branches of United States financial institutions (as defined in
Section 1.165-12(c)(1)(v) of the United States Treasury regulations) ("financial
institutions") purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Debt Securities through foreign branches of
United States financial institutions and who hold the Debt Securities through
such United States financial institutions on the date hereof (and in either case
(a) or (b), each such United States financial institution has agreed, on its own
behalf or through its agent, that we may advise the Company or the Company's
agent that it will comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the Internal Revenue Code of 1986, as amended, and the Treasury
regulations thereunder), or (iii) is owned by United States or foreign financial
institution(s) for the purpose of resale during the restricted period (as
defined in Section 1.163-5(c)(2)(i)(D)(7) of the United States Treasury
regulations), and in addition United States or foreign financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) have certified that they have not acquired the Debt Securities for the
purpose of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
We further certify (i) that we are not making available for exchange or
collection of any interest any portion of the temporary Global Note excepted in
such certifications and (ii) that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part submitted herewith for exchange or collection of any interest are no longer
true and cannot be relied upon as of the date hereof.
We understand that this certificate is required in connection with certain
tax laws and regulations of the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
72
78
"United States person" means any citizen or resident of the United States,
any corporation, partnership or other entity created or organized in or under
the laws of the United States and any estate or trust the income of which is
subject to United States federal income taxation regardless of its source.
"United States" means the United States of America (including the States and the
District of Columbia) and its "possessions" which include Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana
Islands.
Dated: ,
[To be dated no earlier than the
Exchange Date]
By:
[MORGAN GUARANTY TRUST COMPANY OF NEW
YORK, BRUSSELS OFFICE, as Operator
of the Euro-Clear System] [CEDEL,
S.A.]
73
1
EXHIBIT 5
---------
[SIMPSON THACHER & BARTLETT LETTERHEAD]
August 16, 1995
Hubbell Incorporated
584 Derby Milford Road
Orange, Connecticut 06477-4024
Dear Sirs:
We have acted as counsel to Hubbell Incorporated, a Connecticut
corporation (the "Company"), in connection with the Company's Registration
Statement on Form S-3 (the "Registration Statement") filed by the Company under
the Securities Act of 1933, as amended, relating to senior debt securities to
be issued by the Company (the "Senior Debt Securities"). The Senior Debt
Securities will be issued under an Indenture (the "Senior Debt Indenture")
between the Company and Chemical Bank, as Trustee (the "Senior Debt Trustee").
We have examined the Registration Statement and the form of the
Senior Debt Indenture. In addition, we have examined, and have relied as to
matters of fact upon, originals or copies, certified or otherwise identified to
our 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 we have deemed relevant and necessary as a basis
for the opinions hereinafter set forth.
2
SIMPSON THACHER & BARTLETT
Hubbell Incorporated 2 August 16, 1995
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents.
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, when (i) the Senior Debt Indenture has been duly
authorized and validly executed and delivered by the parties to the Senior Debt
Indenture, (ii) the Senior Debt Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended, (iii) the Board of Directors of the
Company, a duly constituted and acting committee thereof or duly authorized
officers thereof (such Board of Directors, committee or authorized officers
being hereinafter referred to as the "Board") has taken all necessary corporate
action to approve the issuance and terms of the Senior Debt Securities, the
terms of the offering thereof and related matters, and (iv) the Senior Debt
Securities have been duly executed, authenticated, issued and delivered in
accordance with the provisions of the Senior Debt Indenture and the applicable
definitive purchase, underwriting or similar agreement approved by the Board
upon payment of the consideration therefor provided for therein, we are of the
opinion that the Senior Debt Securities will constitute valid and legally
binding obligations of the Company enforceable against the Company in
accordance with their terms and entitled to the benefits of the Senior Debt
Indenture, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization,
3
SIMPSON THACHER & BARTLETT
Hubbell Incorporated 3 August 16, 1995
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.
We are members of the Bar of the State of New York and we do not
express any opinion herein concerning any law other than the law of the State
of New York or the federal law of the United States. Insofar as the opinions
expressed herein relate to or are dependent upon matters governed by the law of
the State of Connecticut, we have relied upon the opinion of Richard W. Davies,
Esq., General Counsel of the Company, dated the date hereof.
We hereby consent to the filing of this opinion of counsel as
Exhibit 5 to the Registration Statement and to the use of our name under the
caption "Legal Matters" in the Registration Statement.
Very truly yours,
SIMPSON THACHER & BARTLETT
1
EXHIBIT 12
HUBBELL INCORPORATED
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(DOLLAR AMOUNTS IN THOUSANDS)
SIX MONTHS ENDED
JUNE 30, YEAR ENDED DECEMBER 31,
----------------- ---------------------------------------------------
1995 1994 1994 1993 1992 1991 1990
------- ------- -------- ------- -------- -------- --------
Income from continuing operations
before provision for income taxes
per statement of income........... $80,118 $69,573 $145,935 $81,494 $130,678 $129,418 $124,655
Add:
Portion of rents representative of
the interest factor............ 1,109 1,084 2,300 1,867 2,200 2,267 1,600
Interest on indebtedness.......... 4,583 2,290 6,074 3,386 702 632 694
Capitalized interest.............. -- -- -- -- -- -- --
Amortization of debt expense and
premium........................ -- -- -- -- -- -- --
------- ------- -------- ------- -------- -------- --------
Earnings as adjusted................ $85,810 $72,947 $154,309 $86,747 $133,580 $132,317 $126,949
------- ------- -------- ------- -------- -------- --------
Interest on indebtedness.......... $ 4,583 $ 2,290 $ 6,074 $ 3,386 $ 702 $ 632 $ 694
Amortization of debt expense and
premium........................ -- -- -- -- -- -- --
Capitalized interest.............. -- -- -- -- -- -- --
Portion of rents representative of
the interest factor............ 1,109 1,084 2,300 1,867 2,200 2,267 1,600
------- ------- -------- ------- -------- -------- --------
Fixed charges....................... $ 5,692 $ 3,374 $ 8,374 $ 5,253 $ 2,902 $ 2,899 $ 2,294
------- ------- -------- ------- -------- -------- --------
Ratio of earnings to fixed
charges........................... 15.1 21.6 18.4 16.5 46.0 45.6 55.3
======= ======= ======== ======= ======== ======== ========
1
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
January 19, 1995 appearing on page 18 of Hubbell Incorporated's Annual Report on
Form 10-K for the year ended December 31, 1994. We also consent to the
incorporation by reference of our report on Financial Statement Schedules, which
appears on page 48 of such Annual Report on Form 10-K. We also consent to the
reference to us under the heading "Experts" in such Prospectus.
Price Waterhouse LLP
Stamford, Connecticut
August 16, 1995
1
EXHIBIT 24
----------
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below constitutes and appoints Richard W. Davies and John F. Mulvihill, and each
of them, his or her true and lawful attorneys-in-fact and agents, with full
power of substitution and revocation, in his or her name and on his or her
behalf, to do any and all acts and things and to execute any and all instruments
which they, or any of them, may deem necessary or advisable to enable Hubbell
Incorporated (the "Company") to comply with the Securities Act of 1933 (the
"Act") and any rules, regulations and requirements of the Securities and
Exchange Commission in respect thereof, in connection with the registration
under the Act of unsecured debt securities to be issued by the Company for an
aggregate offering price not to exceed $200 million, including power and
authority to sign his or her name in any and all capacities (including his or
her capacity as Director and/or Officer of the Company) to one or more
registration statements on Form S-3, or such other available form as may be
approved by officers of the Company, and to any and all amendments, including
post-effective amendments, to such registration statements, and to any and all
instruments or documents filed as part of or in connection with such
registration statements or any amendments thereto; and the undersigned hereby
ratifies and confirms all that said attorneys-in-fact and agents, or any of
them, shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents the
respective date indicated.
/s/ E. R. Brooks
--------------------------------------
E. R. Brooks
Director
DATED August 10, 1995
2
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below constitutes and appoints Richard W. Davies and John F. Mulvihill, and each
of them, his or her true and lawful attorneys-in-fact and agents, with full
power of substitution and revocation, in his or her name and on his or her
behalf, to do any and all acts and things and to execute any and all instruments
which they, or any of them, may deem necessary or advisable to enable Hubbell
Incorporated (the "Company") to comply with the Securities Act of 1933 (the
"Act") and any rules, regulations and requirements of the Securities and
Exchange Commission in respect thereof, in connection with the registration
under the Act of unsecured debt securities to be issued by the Company for an
aggregate offering price not to exceed $200 million, including power and
authority to sign his or her name in any and all capacities (including his or
her capacity as Director and/or Officer of the Company) to one or more
registration statements on Form S-3, or such other available form as may be
approved by officers of the Company, and to any and all amendments, including
post-effective amendments, to such registration statements, and to any and all
instruments or documents filed as part of or in connection with such
registration statements or any amendments thereto; and the undersigned hereby
ratifies and confirms all that said attorneys-in-fact and agents, or any of
them, shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents the
respective date indicated.
/s/ George W. Edwards, Jr.
--------------------------------------
George W. Edwards, Jr.
Director
DATED August 2, 1995
3
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below constitutes and appoints Richard W. Davies and John F. Mulvihill, and each
of them, his or her true and lawful attorneys-in-fact and agents, with full
power of substitution and revocation, in his or her name and on his or her
behalf, to do any and all acts and things and to execute any and all instruments
which they, or any of them, may deem necessary or advisable to enable Hubbell
Incorporated (the "Company") to comply with the Securities Act of 1933 (the
"Act") and any rules, regulations and requirements of the Securities and
Exchange Commission in respect thereof, in connection with the registration
under the Act of unsecured debt securities to be issued by the Company for an
aggregate offering price not to exceed $200 million, including power and
authority to sign his or her name in any and all capacities (including his or
her capacity as Director and/or Officer of the Company) to one or more
registration statements on Form S-3, or such other available form as may be
approved by officers of the Company, and to any and all amendments, including
post-effective amendments, to such registration statements, and to any and all
instruments or documents filed as part of or in connection with such
registration statements or any amendments thereto; and the undersigned hereby
ratifies and confirms all that said attorneys-in-fact and agents, or any of
them, shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents the
respective date indicated.
/s/ Joel S. Hoffman
--------------------------------------
Joel S. Hoffman
Director
DATED August 2, 1995
4
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below constitutes and appoints Richard W. Davies and John F. Mulvihill, and each
of them, his or her true and lawful attorneys-in-fact and agents, with full
power of substitution and revocation, in his or her name and on his or her
behalf, to do any and all acts and things and to execute any and all instruments
which they, or any of them, may deem necessary or advisable to enable Hubbell
Incorporated (the "Company") to comply with the Securities Act of 1933 (the
"Act") and any rules, regulations and requirements of the Securities and
Exchange Commission in respect thereof, in connection with the registration
under the Act of unsecured debt securities to be issued by the Company for an
aggregate offering price not to exceed $200 million, including power and
authority to sign his or her name in any and all capacities (including his or
her capacity as Director and/or Officer of the Company) to one or more
registration statements on Form S-3, or such other available form as may be
approved by officers of the Company, and to any and all amendments, including
post-effective amendments, to such registration statements, and to any and all
instruments or documents filed as part of or in connection with such
registration statements or any amendments thereto; and the undersigned hereby
ratifies and confirms all that said attorneys-in-fact and agents, or any of
them, shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents the
respective date indicated.
/s/ Horace G. McDonell
--------------------------------------
Horace G. McDonell
Director
DATED August 10, 1995
5
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below constitutes and appoints Richard W. Davies and John F. Mulvihill, and each
of them, his or her true and lawful attorneys-in-fact and agents, with full
power of substitution and revocation, in his or her name and on his or her
behalf, to do any and all acts and things and to execute any and all instruments
which they, or any of them, may deem necessary or advisable to enable Hubbell
Incorporated (the "Company") to comply with the Securities Act of 1933 (the
"Act") and any rules, regulations and requirements of the Securities and
Exchange Commission in respect thereof, in connection with the registration
under the Act of unsecured debt securities to be issued by the Company for an
aggregate offering price not to exceed $200 million, including power and
authority to sign his or her name in any and all capacities (including his or
her capacity as Director and/or Officer of the Company) to one or more
registration statements on Form S-3, or such other available form as may be
approved by officers of the Company, and to any and all amendments, including
post-effective amendments, to such registration statements, and to any and all
instruments or documents filed as part of or in connection with such
registration statements or any amendments thereto; and the undersigned hereby
ratifies and confirms all that said attorneys-in-fact and agents, or any of
them, shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents the
respective date indicated.
/s/ Andrew McNally, IV
--------------------------------------
Andrew McNally, IV
Director
DATED August 2, 1995
6
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below constitutes and appoints Richard W. Davies and John F. Mulvihill, and each
of them, his or her true and lawful attorneys-in-fact and agents, with full
power of substitution and revocation, in his or her name and on his or her
behalf, to do any and all acts and things and to execute any and all instruments
which they, or any of them, may deem necessary or advisable to enable Hubbell
Incorporated (the "Company") to comply with the Securities Act of 1933 (the
"Act") and any rules, regulations and requirements of the Securities and
Exchange Commission in respect thereof, in connection with the registration
under the Act of unsecured debt securities to be issued by the Company for an
aggregate offering price not to exceed $200 million, including power and
authority to sign his or her name in any and all capacities (including his or
her capacity as Director and/or Officer of the Company) to one or more
registration statements on Form S-3, or such other available form as may be
approved by officers of the Company, and to any and all amendments, including
post-effective amendments, to such registration statements, and to any and all
instruments or documents filed as part of or in connection with such
registration statements or any amendments thereto; and the undersigned hereby
ratifies and confirms all that said attorneys-in-fact and agents, or any of
them, shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents the
respective date indicated.
/s/ Daniel J. Meyer
--------------------------------------
Daniel J. Meyer
Director
DATED August 3, 1995
7
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below constitutes and appoints Richard W. Davies and John F. Mulvihill, and each
of them, his or her true and lawful attorneys-in-fact and agents, with full
power of substitution and revocation, in his or her name and on his or her
behalf, to do any and all acts and things and to execute any and all instruments
which they, or any of them, may deem necessary or advisable to enable Hubbell
Incorporated (the "Company") to comply with the Securities Act of 1933 (the
"Act") and any rules, regulations and requirements of the Securities and
Exchange Commission in respect thereof, in connection with the registration
under the Act of unsecured debt securities to be issued by the Company for an
aggregate offering price not to exceed $200 million, including power and
authority to sign his or her name in any and all capacities (including his or
her capacity as Director and/or Officer of the Company) to one or more
registration statements on Form S-3, or such other available form as may be
approved by officers of the Company, and to any and all amendments, including
post-effective amendments, to such registration statements, and to any and all
instruments or documents filed as part of or in connection with such
registration statements or any amendments thereto; and the undersigned hereby
ratifies and confirms all that said attorneys-in-fact and agents, or any of
them, shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents the
respective date indicated.
/s/ G. Jackson Ratcliffe
--------------------------------------
G. Jackson Ratcliffe
Director
DATED August 2, 1995
8
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below constitutes and appoints Richard W. Davies and John F. Mulvihill, and each
of them, his or her true and lawful attorneys-in-fact and agents, with full
power of substitution and revocation, in his or her name and on his or her
behalf, to do any and all acts and things and to execute any and all instruments
which they, or any of them, may deem necessary or advisable to enable Hubbell
Incorporated (the "Company") to comply with the Securities Act of 1933 (the
"Act") and any rules, regulations and requirements of the Securities and
Exchange Commission in respect thereof, in connection with the registration
under the Act of unsecured debt securities to be issued by the Company for an
aggregate offering price not to exceed $200 million, including power and
authority to sign his or her name in any and all capacities (including his or
her capacity as Director and/or Officer of the Company) to one or more
registration statements on Form S-3, or such other available form as may be
approved by officers of the Company, and to any and all amendments, including
post-effective amendments, to such registration statements, and to any and all
instruments or documents filed as part of or in connection with such
registration statements or any amendments thereto; and the undersigned hereby
ratifies and confirms all that said attorneys-in-fact and agents, or any of
them, shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents the
respective date indicated.
/s/ John A. Urquhart
--------------------------------------
John A. Urquhart
Director
DATED August 7, 1995
9
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below constitutes and appoints Richard W. Davies and John F. Mulvihill, and each
of them, his or her true and lawful attorneys-in-fact and agents, with full
power of substitution and revocation, in his or her name and on his or her
behalf, to do any and all acts and things and to execute any and all instruments
which they, or any of them, may deem necessary or advisable to enable Hubbell
Incorporated (the "Company") to comply with the Securities Act of 1933 (the
"Act") and any rules, regulations and requirements of the Securities and
Exchange Commission in respect thereof, in connection with the registration
under the Act of unsecured debt securities to be issued by the Company for an
aggregate offering price not to exceed $200 million, including power and
authority to sign his or her name in any and all capacities (including his or
her capacity as Director and/or Officer of the Company) to one or more
registration statements on Form S-3, or such other available form as may be
approved by officers of the Company, and to any and all amendments, including
post-effective amendments, to such registration statements, and to any and all
instruments or documents filed as part of or in connection with such
registration statements or any amendments thereto; and the undersigned hereby
ratifies and confirms all that said attorneys-in-fact and agents, or any of
them, shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents the
respective date indicated.
/s/ Malcolm Wallop
--------------------------------------
Malcolm Wallop
Director
DATED August 2, 1995
1
-------------------------------------------------------------------
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) ________
----------------------------------------
CHEMICAL BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
HUBBELL INCORPORATED
(Exact name of obligor as specified in its charter)
CONNECTICUT 06-0397030
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
584 DERBY MILFORD ROAD
ORANGE, CONNECTICUT 06477-4024
(Address of principal executive offices) (Zip Code)
-------------------------------------------
SENIOR DEBT SECURITIES
(Title of the indenture securities)
-----------------------------------------------------
2
GENERAL
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.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(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.
None.
- 2 -
3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985 and December 2, 1991 (see Exhibit 1 to Form T-1 filed in
connection with Registration Statement No. 33-50010, which is incorporated by
reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 33-84460, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference).
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.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, Chemical Bank, a corporation organized and existing under the laws of
the State of New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in the
City of New York and State of New York, on the 9TH day of AUGUST, 1995.
CHEMICAL BANK
By John Generale
------------------------------
John Generale
Vice President
- 3 -
4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
Chemical Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1995, in accordance
with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act.
DOLLAR AMOUNTS
ASSETS IN MILLIONS
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ................................. $ 5,797
Interest-bearing balances ......................... 2,523
Securities: ..........................................
Held to maturity securities............................ 6,195
Available for sale securities.......................... 17,785
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 IBF's:
Federal funds sold ................................ 2,493
Securities purchased under agreements to resell ... 50
Loans and lease financing receivables:
Loans and leases, net of unearned income $68,937
Less: Allowance for loan and lease losses 1,898
Less: Allocated transfer risk reserve ... 113
Loans and leases, net of unearned income, -------
allowance, and reserve ............................ 66,926
Trading Assets ....................................... 37,294
Premises and fixed assets (including capitalized
leases)............................................ 1,402
Other real estate owned ............................... 99
Investments in unconsolidated subsidiaries and
associated companies............................... 148
Customer's liability to this bank on acceptances
outstanding ....................................... 1,051
Intangible assets ..................................... 512
Other assets .......................................... 6,759
---------
TOTAL ASSETS .......................................... $ 149,034
=========
- 4 -
5
LIABILITIES
Deposits
In domestic offices ................................ $44,882
Noninterest-bearing .........................$14,690
Interest-bearing ............................ 30,192
------
In foreign offices, Edge and Agreement subsidiaries,
and IBF's .......................................... 32,537
Noninterest-bearing .........................$ 146
Interest-bearing ............................ 32,391
------
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 IBF's
Federal funds purchased ............................ 10,587
Securities sold under agreements to repurchase ..... 3,083
Demand notes issued to the U.S. Treasury .............. 464
Trading liabilities ................................... 31,358
Other Borrowed money:
With original maturity of one year or less ......... 7,527
With original maturity of more than one year ....... 914
Mortgage indebtedness and obligations under capitalized
leases ............................................. 20
Bank's liability on acceptances executed and outstanding 1,054
Subordinated notes and debentures ..................... 3,410
Other liabilities ..................................... 5,986
TOTAL LIABILITIES ..................................... 141,822
--------
EQUITY CAPITAL
Common stock .......................................... 620
Surplus ............................................... 4,501
Undivided profits and capital reserves ................ 2,558
Net unrealized holding gains (Losses)
on available-for-sale securities ...................... (476)
Cumulative foreign currency translation adjustments ... 9
TOTAL EQUITY CAPITAL .................................. 7,212
--------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL .......................... $149,034
========
I, Joseph L. Sclafani, S.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and 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
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
EDWARD D. MILLER )DIRECTORS
WILLIAM B. HARRISON )
- 5 -
