As Filed with the Securities and Exchange Commission on December 17, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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TEXAS INSTRUMENTS INCORPORATED
(Exact name of Registrant as specified in its charter)
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Delaware 75-9289907
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(State or jurisdiction of See Table of (I.R.S. Employer
incorporation or organization) Additional Registrants Identification Number)
12500 TI Boulevard
P.O. Box 660199
Dallas, Texas 75266-0199
(972) 995-3773
(Address, including zip code, and telephone number, including area
code, of Registrant's principal executive offices)
Richard J. Agnich, Senior Vice President, Secretary and General Counsel
Texas Instruments Incorporated
12500 TI Boulevard
P.O. Box 660199
Dallas, Texas 75266-0199
(972) 995-3773
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies of communications to:
Bruce K. Dallas, Esquire
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
(212) 450-4000
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Approximate Date of Commencement of Proposed Sale to the Public: From time
to time after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, as amended (the "Securities Act"), other than securities offered only
in connection with dividend or interest reinvestment plans, please check the
following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the
same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
==================================================================================================================================
Proposed Maximum Proposed Maximum Amount of
Title of Each Class of Amount to be Offering Price Aggregate Registration
Securities to be Registered Registered(1) Per Unit(2) Offering Price(2) Fee(3)
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Senior Debt Securities and Subordinated Debt Securities
(collectively, "Debt Securities"), Warrants,
Purchase Contracts and Units......................... $1,000,000,000 100% $1,000,000,000 $237,600
==================================================================================================================================
(1) Such amount in U.S. dollars as shall result in an aggregate initial
offering price for all securities of $1,000,000,000. The Prospectus
herein covers $1,000,000,000 of securities, including securities for
which the registration fee has been previously paid in connection with
the registration statement referred to below. In addition, this
Registration Statement includes such presently indeterminate number of
securities as may be issuable from time to time upon exchange of the
securities being registered hereunder.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) 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.
Pursuant to Rule 429 promulgated under the Securities Act of 1933, the
prospectus which forms a part of this Registration Statement also relates to
the remaining $100,000,000 initial offering price of securities registered
under the Registrant's Registration Statement on Form S-3, File No. 333-03571,
which was declared effective on June 7, 1996.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
===============================================================================
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and we are not soliciting offers to buy these
securities in any state where the offer is not permitted.
PROSPECTUS Subject to Completion
Issued ___________ o, 1999
Texas Instruments Incorporated
$1,000,000,000 12500 TI Boulevard
P.O. Box 660199
Dallas, Texas 75266-0199
(972) 995-3773
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The following are types of securities that we may offer and sell under this
prospectus:
o Unsecured subordinated debt securities o Warrants
o Unsecured and unsubordinated debt securities o Units
o Purchase contracts
We will describe in a prospectus supplement, which must accompany this
prospectus, the securities we are offering and selling, as well as the specific
terms of the securities. Those terms may include:
o Maturity o Redemption terms
o Interest rate o Listing on a securities exchange
o Sinking fund terms o Amount payable at maturity
o Currency of payments o Exchange rights
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The Securities and Exchange Commission and state securities regulators have
not approved or disapproved these securities, or determined if this prospectus
is truthful or complete. Any representation to the contrary is a criminal
offense.
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We may offer the securities in amounts, at prices and on terms determined
at the time of offering. We may sell the securities directly to you, through
agents we select, or through underwriters and dealers we select. If we use
agents, underwriters or dealers to sell the securities, we will name them and
describe their compensation in a prospectus supplement.
December 16, 1999.
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TABLE OF CONTENTS
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Page
----
Special Note Regarding Forward-Looking Statements.............................1
Texas Instruments Incorporated................................................2
Use of Proceeds...............................................................3
Ratio of Earnings to Fixed Charges............................................3
Description of the Senior Debt Securities and the Subordinated Debt
Securities..................................................................3
Description of Warrants.......................................................13
Description of Purchase Contracts.............................................14
Description of Units..........................................................14
Global Securities.............................................................14
Plan of Distribution..........................................................16
Legal Matters.................................................................17
Experts.......................................................................17
Available Information.........................................................17
Incorporation of Certain Documents by Reference...............................18
2
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
We urge you to carefully consider the following important factors that
could affect the semiconductor industry and cause actual results of our
operations to differ materially from our expectations:
o market demand for semiconductors, particularly for digital signal
processors and analog chips in key markets, such as
telecommunications and computers;
o our ability to develop, manufacture and
market innovative products in a rapidly
changing technological environment;
o our ability to compete in products and
prices in an intensely competitive industry;
o our ability to maintain and enforce a strong intellectual property
portfolio and obtain needed licenses from third parties;
o timely completion by customers and suppliers of their Year 2000
programs, accurate assessment of our Year 2000 readiness and of risks
associated with its current and past products, and effective
implementation of contingency plans and corrective actions;
o timely completion of announced
acquisitions;
o global economic, social and political conditions in the countries in
which we and our customers and suppliers operate, including
fluctuations in foreign currency exchange rates;
o losses or curtailments of purchases from
key customers;
o our ability to recruit and retain skilled
personnel;
o availability of raw materials and critical
manufacturing equipment; and
o realization of savings from announced worldwide corporate
restructuring efforts and consolidation of manufacturing operations.
For a more detailed discussion of these factors, see the text under the
heading "Cautionary Statements Regarding Future Operations" in Item 1 of our
annual report on Form 10-K for 1998. The forward-looking statements included in
this prospectus are made only as of the date of this prospectus and we
undertake no obligation to publicly update the forward-looking statements to
reflect subsequent events or circumstances.
In this prospectus and in the documents we incorporate by reference, we
state our beliefs of future events and our future financial performance. In
some cases, you can identify those so-called "forward-looking statements" by
words such as "may," "will," "should," "expects," "plans," "anticipates,"
"believes," "estimates," "predicts," "potential," or "continue" or the negative
of those words and other comparable words. You should be aware that those
statements are only our predictions. Actual events or results may differ
materially. In evaluating those statements, you should specifically consider
various factors, including risks. Those factors may cause our actual results to
differ materially from any of our forward-looking statements.
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TEXAS INSTRUMENTS INCORPORATED
We are a global semiconductor company and the world's leading designer and
supplier of digital signal processors and analog integrated circuits, the
engines driving the digitization of electronics. These two types of
semiconductor products work together in digital electronic devices such as
digital cellular phones. Analog technology converts analog signals like sound,
light, temperature and pressure into the digital language of zeros and ones,
which can then be processed in real-time by a digital signal processor. Analog
integrated circuits also translate digital signals back to analog. Digital
signal processors and analog integrated circuits enable a wide range of new
products and features for our more than 30,000 customers in commercial,
industrial and consumer markets.
We are also the world leader in the design and manufacturing of other
semiconductor products. Those products include standard logic, application-
specific integrated circuits, reduced instruction-set computing
microprocessors, and microcontrollers.
The semiconductor business comprised 80% of our 1998 revenues when the
divested memory business is excluded. Our semiconductor products are used in a
diverse range of electronic systems, including digital cell phones, computers,
printers, hard disk drives, modems, networking equipment, digital cameras and
video recorders, motor controls, autos and home appliances. Products are sold
primarily to original-equipment manufacturers and through distributors. Our
semiconductor patent portfolio has been established as an ongoing contributor
to semiconductor revenues. Revenues generated from sales to our top three
semiconductor customers accounted for approximately 24% of total semiconductor
revenues in 1998.
In addition to semiconductors, we have two other principal segments. The
largest, representing 12% of our 1998 revenues when the memory business is
excluded, is Materials & Controls (M&C). This business sells electrical and
electronic controls, electronic connectors, sensors, radio- frequency
identification systems and clad metals into commercial and industrial markets.
Revenues generated from sales to our top three M&C customers accounted for
approximately 15% of total M&C revenues in 1998.
Educational & Productivity Solutions (E&PS) represents 6% of our 1998
revenues when the memory business is excluded, and is a leading supplier of
educational and graphing calculators. Revenues generated from sales to our top
three E&PS customers accounted for approximately 26% of total E&PS revenues in
1998.
In addition, we continue to invest in digital imaging, an emerging
business that produces micro- mirror-based devices than enable brightness and
clarity in large-screen video displays.
We are a Delaware corporation that was organized in 1938. We have our
principal executive offices at 12500 TI Boulevard, Dallas, Texas 75366- 0199.
Our telephone number is (972) 995-3773. We also have a world wide web site at
http://www.ti.com. The information posted on our web site is not incorporated
into this prospectus.
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USE OF PROCEEDS
We intend to use the net proceeds from the sale of the securities for
working capital and general corporate purposes, including possible redemption
or purchase of our existing debt securities. We may also invest the proceeds in
certificates of deposit, United States government securities or certain other
interest bearing securities. If we decide to use the net proceeds from a
particular offering of securities for a specific purpose, we will describe that
in a prospectus supplement.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratio of earnings to fixed charges for
each of the years ended December 1994 through 1998 and for nine months ended
September 30, 1999. Earnings consist of income (loss) from continuing
operations before income taxes, extraordinary items, cumulative effect of
accounting changes, equity in net losses of affiliates and fixed charges. Fixed
charges consist of interest expense and capitalized interest.
Nine Months Ended
September 30, Years Ended December 31,
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1999 1998 1998 1997 1996 1995 1994
---- ---- ---- ---- ---- ---- ----
Ratio of earnings to fixed charges............... 17.1x 4.6x 6.0x 5.5x * 14.3x 10.0x
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*Not meaningful. The coverage deficiency was $43 million in 1996.
DESCRIPTION OF THE SENIOR DEBT SECURITIES AND
THE SUBORDINATED DEBT SECURITIES
Our debt securities, consisting of notes, debentures or other evidences of
indebtedness, may be issued from time to time in one or more series:
o in the case of senior debt securities, under a senior indenture dated
as of July 15, 1996 between us and Citibank, N.A., as trustee; and
o in the case of subordinated debt securities, under a subordinated
indenture dated as of December 16, 1999 between us and Chase Bank of
Texas, National Association, as
trustee.
The senior indenture and the subordinated indenture are included as
exhibits to the registration statement of which this prospectus is a part.
Because the following is only a summary of the indentures and the debt
securities, it does not contain all information that you may find useful. For
further information about the indentures and the debt securities, you should
read the indentures. As used in this Section of the prospectus and under
captions "Description of Warrants," "Description of Purchase Contracts" and
"Description of Units," the terms we, us and our mean Texas Instruments
Incorporated only, and not subsidiaries of Texas Instruments Incorporated.
General
The senior debt securities will constitute unsecured and unsubordinated
obligations of ours and the subordinated debt securities will constitute
unsecured and subordinated obligations of ours. A detailed description of the
subordination provisions is provided below under the caption "Certain Terms of
the subordinated debt securities -- Subordination". In general, however, if we
declare bankruptcy the senior debt securities will be paid in full before the
subordinated debt securities will receive anything.
We conduct some of our operations through subsidiaries. Consequently, our
ability to pay our obligations, including our obligation to pay principal or
interest on the debt securities, to pay the debt securities at maturity or upon
redemption or to buy the debt securities may depend upon our subsidiaries
repaying investments and advances we have made to them, and upon our
subsidiaries' earnings and their distributing those earnings to us. Our
subsidiaries are separate and distinct legal entities and have no
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obligation, contingent or otherwise, to pay any amounts due on the debt
securities or to make funds available to us to do so. Our subsidiaries' ability
to pay dividends or make other payments or advances to us will depend upon
their operating results and will be subject to applicable laws and contractual
restrictions. The indentures will not limit our subsidiaries' ability to enter
into other agreements that prohibit or restrict dividends or other payments or
advances to us.
You should look in the prospectus supplement for the following terms of
the debt securities being offered:
o the debt securities' designation;
o the aggregate principal amount of the debt
securities;
o the percentage of their principal amount (i.e. price) at which the
debt securities will be issued;
o the date or dates on which the debt securities will mature and the
right, if any, to extend such date or dates;
o the rate or rates, if any, per year, at which the debt securities
will bear interest, or the method of determining such rate or rates;
o the date or dates from which such interest will accrue, the interest
payment dates on which such interest will be payable or the manner of
determination of such interest payment dates and the record dates for
the determination of holders to whom interest is payable on any
interest payment dates;
o the right, if any, to extend the interest payment periods and the
duration of that extension;
o provisions for a sinking fund purchase or other analogous fund, if
any;
o the period or periods, if any, within which, the price or prices at
which, and the terms and conditions upon which the debt securities
may be redeemed, in whole or in part, at our option or at your
option;
o the form of the debt securities;
o any provisions for payment of additional amounts for taxes and any
provision for redemption, if we must pay such additional amounts in
respect of any debt security;
o the terms and conditions, if any, upon which we may have to repay the
debt securities early at your option and the price or prices in the
currency or currency unit in which the debt securities are payable;
o the currency, currencies or currency units for which you may purchase
the debt securities and the currency, currencies or currency units in
which principal and interest, if any, on the debt securities may be
payable;
o the terms and conditions, if any, pursuant to which the debt
securities may be exchanged for the cash value of other securities
issued by us or by a third party; and
o any other terms of the debt securities, including any additional
events of default or covenants provided for with respect to the debt
securities, and any terms which may be required by or advisable under
applicable laws or regulations.
You may present debt securities for exchange and you may present
registered debt securities for transfer in the manner, at the places and
subject to the restrictions set forth in the debt securities and the prospectus
supplement. We will provide you those services without charge, although you may
have to pay any tax or other governmental charge payable in connection with any
exchange or transfer, as set forth in the indenture. You may also transfer debt
securities in bearer form by delivery.
Debt securities will bear interest at a fixed rate or a floating rate.
Debt securities bearing no interest or interest at a rate that at the time of
issuance is below the prevailing market rate (Original Issue Discount
Securities) may be sold at a discount below their stated principal amount.
Special United States federal income tax considerations applicable to any such
discounted debt securities or to certain debt securities issued at par which
are treated as having
4
been issued at a discount for United States federal income tax purposes will be
described in the relevant prospectus supplement.
We may issue debt securities with the principal amount payable on any
principal payment date, or the amount of interest payable on any interest
payment date, to be determined by reference to one or more currency exchange
rates, securities or baskets of securities, commodity prices or indices. You
may receive a payment of principal on any principal payment date, or a payment
of interest on any interest payment date, that is greater than or less than the
amount of principal or interest otherwise payable on such dates, depending upon
the value on such dates of the applicable currency, security or basket of
securities, commodity or index. Information as to the methods for determining
the amount of principal or interest payable on any date, the currencies,
securities or baskets of securities, commodities or indices to which the amount
payable on such date is linked and certain additional tax considerations will
be set forth in the applicable prospectus supplement.
Certain Terms of the Senior Debt Securities
Certain Covenants
Certain Definitions. The term "attributable debt" in respect of a sale and
leaseback transaction means, at the time of determination, the present value
(discounted at the interest rate implicit in the lease or, if it is not
practicable to determine such rate, then at our incremental borrowing rate
determined in accordance with generally accepted accounting principles) of the
obligation of the lessee for net rental payments during the remaining term of
any lease.
The term "consolidated net tangible assets" means, at any date, the total
assets appearing on our audited annual consolidated balance sheet and that of
our subsidiaries for the most recently completed fiscal year, prepared in
accordance with generally accepted accounting principles, less all current
liabilities as shown on such balance sheet, and intangible assets.
The term "funded debt" means all debt whether incurred, assumed or
guaranteed, including purchase money indebtedness, maturing by its terms more
than one year from the date of creation thereof or which is renewable or
extendable at the sole option of the obligor in such manner that it may become
payable more than one year from the date of creation thereof.
The term "principal manufacturing property" means each of our, or our
subsidiary's manufacturing or processing plant or facility located in the
United States of America (other than its territories and possessions) or Puerto
Rico, except any such manufacturing or processing plant or facility which the
board of directors by resolution reasonably determines not to be of material
importance to the total business conducted by us and our consolidated
subsidiaries.
The term "restricted subsidiary" means:
o any of our subsidiaries which owns or is the lessee of any principal
manufacturing property; provided, however, that the term "restricted
subsidiary" shall not include any subsidiary primarily engaged in
financing our operations or the operations of our subsidiaries or
both, or any subsidiary acquired or organized for the purpose of
business acquisitions; or
o any other subsidiary which is hereafter designated by the board of
directors as a restricted subsidiary.
Restrictions on Liens. The senior indenture provides that, unless as may
otherwise be indicated by a supplemental indenture, we will not nor will we
permit any restricted subsidiary to issue or assume any debt for money borrowed
(which, including guarantees of debt for borrowed money, we refer to as
"debt"), if the debt is secured by a mortgage, pledge, lien or other
encumbrance (which we refer to as a "mortgage") upon any principal
manufacturing property or on any shares of stock or debt of any restricted
subsidiary (whether such principal manufacturing property, shares of stock or
debt is now owned or subsequently acquired) without in any such case
effectively providing that the senior debt securities (together with any other
debt security ranking equally with the senior debt securities) shall be secured
equally and ratably with the debt. The foregoing restrictions shall not apply
to:
o mortgages on property existing at the time of or within 120 days
after acquisition of the property and certain purchase money
5
mortgages;
o mortgages on property of a corporation existing at the time that
corporation is merged into or consolidated with us or a restricted
subsidiary;
o mortgages in favor of the United States or any political subdivision
or any instrumentality thereof, to secure certain payments pursuant
to any contract or statute or to secure any indebtedness incurred for
the purpose of financing all or any part of the purchase price or the
cost of construction of the property subject to the mortgages;
o any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any mortgage
referred to in bullet points one to three above; and
o mortgages securing the indebtedness of a restricted subsidiary to us
or to another restricted subsidiary.
Restrictions on Sale and Leaseback Transactions. The senior indenture
provides that, unless as may otherwise be indicated by a supplemental
indenture, we will not, and will not permit any restricted subsidiary to, enter
into any lease longer than three years covering any principal manufacturing
property that is sold to any other person in connection with such lease unless
the proceeds from such sale or transfer shall be at least equal to the fair
value of such property as determined by resolution by our board of directors
and either:
o we or such restricted subsidiary would be entitled, pursuant to the
"Restrictions on Liens" described above, to incur debt secured by a
mortgage on the principal manufacturing property involved in an
amount at least equal to the attributable debt in respect of the
principal manufacturing property without equally and ratably securing
the senior debt securities, provided, that such attributable debt
shall thereupon be deemed to be Debt subject to the provisions of
such restrictions on liens; or
o within a period commencing twelve months prior to the
consummation of the sale and leaseback transaction and ending twelve
months after consummation of such transaction, we or such restricted
subsidiary has expended or will expend for principal manufacturing
property an amount equal to
o the proceeds of such sale and leaseback transaction and we
elect to designate such amount as a credit against such transaction,
or
o a part of the proceeds of such sale and leaseback transaction
and we elect to designate such amount as a credit against such
transaction and treat an amount equal to the remainder of the
proceeds as provided in clause directly below, or
o such attributable debt (less any amount elected under the
clause directly above) is applied within 120 days after the
transaction to the retirement of funded debt, or is considered
attributable debt for purposes of the calculation of exempted debt
and, after giving effect to the exempted debt, the exempted debt does
not exceed 5% of consolidated net tangible assets.
Exempted Debt. The senior indenture provides that, notwithstanding the
restrictions on mortgages and sale and leaseback transactions described above,
we and our restricted subsidiaries may, in addition to amounts permitted under
such restrictions, create debt secured by mortgages, or enter into sale and
leaseback transactions, which would otherwise be subject to the foregoing
restrictions, without equally and ratably securing the senior debt securities
and without any obligation to make expenditures for principal manufacturing
property or to retire any debt, provided, that after giving effect thereto, the
aggregate additional outstanding amount of such debt secured by mortgage plus
attributable debt resulting from such sale and leaseback transactions does not
exceed 5% of consolidated net tangible assets.
Consolidation, Merger and Sale or Conveyance. We may not consolidate with,
merge with or into, or sell, or convey (including by way of lease) all or
substantially all of our assets to any person or permit any person to merge
with or into us unless:
6
o we are the continuing person or the person formed by such
consolidation or into which we are merged or that acquired or leased
our property and assets shall be a corporation or entity organized
and validly existing under the laws of the United States of America
or any jurisdiction thereof (or, any entity not organized under such
laws which agrees, in a form satisfactory to the trustee, to submit
to the jurisdiction of the United States district court for the
Southern District of New York, and to indemnify and hold harmless the
holders of the debt securities against certain taxes and expenses)
and shall expressly assume, by a supplemental indenture, executed and
delivered to the trustee, all of our obligations on all of the debt
securities and under the indenture;
o immediately after giving effect to such transaction, no default or
event of default shall have occurred and be continuing; and
o we deliver to the trustee an officers' certificate and opinion of
counsel, in each case stating that such consolidation, merger, or
transfer and such supplemental indenture complies with this provision
and that all conditions precedent provided for in the indenture and
the debt securities relating to such transaction have been complied
with.
Events of Default
An event of default for any series of senior debt securities is defined
under the senior indenture as being:
o our default in the payment of principal or premium on the senior debt
securities of such series when due and payable whether at maturity,
upon acceleration, redemption, or otherwise;
o our default in the payment of interest on any senior debt securities
of such series when due and payable, if that default continues for a
period of 30 days;
o our default in the performance of or breach of any of our other
covenants or agreements in the senior indenture applicable to senior
debt securities of such series, other than a covenant breach of which
is specifically dealt with elsewhere in the senior indenture, and
that default or breach continues for a period of 90 consecutive days
after we receive written notice from the trustee or from the holders
of 25% or more in aggregate principal amount of the senior debt
securities of such series;
o our default in the performance of any other covenant, if that default
is an Event of Default under any supplemental indenture or in the
resolution of the Board of Directors under which such series of
senior debt securities is issued or in the form of Security for such
series;
o a court having jurisdiction enters a decree
or order for:
o relief in respect of us in an involuntary case under any
applicable bankruptcy, insolvency, or other similar law now or
hereafter in effect;
o appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator, or similar official of us or for all or
substantially all of our property and assets; or
o the winding up or liquidation of our affairs and such decree
or order shall remain unstayed and in effect for a period of 60
consecutive days.
o we:
o commence a voluntary case under any applicable bankruptcy,
insolvency, or other similar law now or hereafter in effect, or
consent to the entry of an order for relief in an involuntary case
under any such law;
o consent to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator, or
similar official of ours for all or substantially all of our property
and assets; or
o effect any general assignment for the
7
benefit of creditors.
If an event of default other than an event of default specified in the
last two bullet points above or an event of default which is in respect of all
outstanding senior debt securities under the third or fourth bullet point
above, occurs with respect to an issue of senior debt securities and is
continuing under the indenture, then, and in each and every such case, either
the trustee or the holders of not less than 25% in aggregate principal amount
of such series then outstanding under the indenture (each such series voting as
a separate class) by written notice to us and to the trustee, if such notice is
given by the holders, may, and the trustee at the request of such holders
shall, declare the principal amount of and accrued interest, if any, on such
senior debt securities to be immediately due and payable. Unless otherwise
specified in the prospectus supplement relating to a series of debt securities
originally issued at a discount, the amount due upon acceleration shall include
only the original issue price of the debt securities, the amount of original
issue discount accrued to the date of acceleration and accrued interest, if
any.
Upon a declaration of acceleration, such principal amount of and accrued
interest, if any, on such senior debt securities shall be immediately due and
payable. If an event of default specified in the last two bullet points above
or an event of default which is in respect of all outstanding senior debt
securities under the third or fourth bullet point above, occurs with respect to
us, either the trustee or the holders of not less than 25% in aggregate
principal amount of the securities of such series then outstanding (treated as
one class) may, by written notice to us and to the trustee, if such notice is
given by the holders, declare the entire principal amount of, and accrued
interest, if any, on each issue of senior debt security then outstanding to be
immediately due and payable.
Upon certain conditions such declarations above may be rescinded and
annulled and past defaults may be waived by the holders of a majority in
aggregate principal amount of all the securities of such series affected by the
default, each series voting as a separate class, (or, of all the senior debt
securities, as the case may be, voting as a single class). Furthermore, subject
to various provisions in the senior indenture, the holders of at least a
majority in aggregate principal amount of an issue of senior debt securities by
notice to the trustee, may waive an existing default or event of default with
respect to such senior debt securities and its consequences, except a default
in the payment of principal of or interest on such senior debt securities or in
respect of a covenant or provision of the indenture which cannot be modified or
amended without the consent of the holders of each such senior debt securities.
Upon any such waiver, such default shall cease to exist, and any event of
default with respect to such senior debt securities shall be deemed to have
been cured, for every purpose of the senior indenture; but no such waiver shall
extend to any subsequent or other default or event of default or impair any
right consequent thereto. For information as to the waiver of defaults, see
"--Modification and Waiver."
The holders of at least a majority in aggregate principal amount of an
issue of senior debt securities may direct the time, method, and place of
conducting any proceeding for any remedy available to the trustee or exercising
any trust or power conferred on the trustee with respect to such senior debt
securities. However, the trustee may refuse to follow any direction that
conflicts with law or the senior indenture, that may involve the trustee in
personal liability, or that the trustee determines in good faith may be unduly
prejudicial to the rights of holders of such issue of senior debt securities
not joining in the giving of such direction and may take any other action it
deems proper that is not inconsistent with any such direction received from
holders of such issue of senior debt securities. A holder may not pursue any
remedy with respect to the indenture or any series of senior debt securities
unless:
o the holder gives the trustee written notice of a continuing event of
default;
o the holders of at least 25% in aggregate principal amount of such
series of senior debt securities make a written request to the
trustee to pursue the remedy in respect of such event of default;
o the requesting holder or holders offer the trustee indemnity
satisfactory to the trustee against any costs, liability, or expense;
o the trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
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o during such 60-day period, the holders of a majority in aggregate
principal amount of such series of senior debt securities do not give
the trustee a direction that is inconsistent with the request.
These limitations, however, do not apply to the right of any holder of a
debt security to receive payment of the principal of or interest, if any, on
such senior debt security, or to bring suit for the enforcement of any such
payment, on or after the due date for the senior debt securities, which right
shall not be impaired or affected without the consent of the holder.
The senior indenture requires certain of our officers to certify, on or
before a fixed date in each year in which any security is outstanding, as to
their knowledge of our compliance with all conditions and covenants under the
senior indenture.
Discharge and Defeasance
The senior indenture provides that, unless the terms of any series of
senior debt securities provides otherwise, we may discharge our obligations
with respect to an issue of senior debt securities and the indenture with
respect to such series of senior debt securities if:
o we pay or cause to be paid, as and when due and payable, the
principal of and any interest on all securities of such series
outstanding under the indenture;
o all senior debt securities of such series previously authenticated
and delivered with certain exceptions, have been delivered to the
trustee for cancellation and we have paid all sums payable by it
under the indenture; or
o o the senior debt securities of such series mature within one
year or all of them are to be called for redemption within one year
under arrangements satisfactory to the trustee for giving the notice
of redemption;
o we irrevocably deposit in trust with the trustee, as trust
funds solely for the benefit of the holders of the senior debt
securities of such series, for that purpose, the entire amount in
cash or, in the case of any series of senior debt securities payments
on which may only be made in US dollars, U.S. government obligations
(maturing as to principal and interest in such amounts and at such
times as will insure the availability of cash sufficient), after
payment of all federal, state and local taxes or other charges and
assessments in respect thereof payable by the trustee, to pay
principal of and interest on the senior debt securities of such
series to maturity or redemption, as the case may be, and to pay all
other sums payable by it under the senior indenture.
With respect to the first and second bullet points, only our obligations
to compensate and indemnify the trustee and our right to recover unclaimed
money held by the trustee under the indenture shall survive. With respect to
the third bullet point, certain rights and obligations under the senior
indenture (such as our obligation to maintain an office or agency in respect of
such senior debt securities, to have moneys held for payment in trust, to
register the transfer or exchange of such senior debt securities, to deliver
such senior debt securities for replacement or to be canceled, to compensate
and indemnify the trustee and to appoint a successor trustee, and our right to
recover unclaimed money held by the trustee) shall survive until such senior
debt securities are no longer outstanding. Thereafter, only our obligations to
compensate and indemnify the trustee, and our right to recover unclaimed money
held by the trustee shall survive.
Unless the terms of any series of senior debt securities provide
otherwise, on the 121st day after the date of deposit of the trust funds with
the trustee, we will be deemed to have paid and will be discharged from any and
all obligations in respect of the series of senior debt securities provided for
in the funds, and the provisions of the senior indenture will no longer be in
effect with respect to such senior debt securities ("legal defeasance");
provided that the following conditions shall have been satisfied:
o we have irrevocably deposited in trust with the trustee as trust
funds solely for the benefit of the holders of the senior debt securities
of such series, for payment of the principal of and interest on the senior
debt securities of such series, cash in an amount or, in the case of any
series of senior debt securities payments on which can only be made in US
dollars, U.S. government obligations (maturing
9
as to principal and interest at such times and in such amounts as will
insure the availability of cash) or a combination thereof sufficient (in
the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
trustee), after payment of all federal, state and local taxes or other
charges and assessments in respect thereof payable by the trustee, to pay
and discharge the principal of and accrued interest on the senior debt
securities of such series to maturity or earlier redemption, as the case
may be;
o such deposit will not result in a breach or violation of, or
constitute a default under, the indenture or any other material agreement
or instrument to which we are a party or by which we are bound;
o no default or 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;
o we shall have delivered to the trustee either an officers'
certificate and an opinion of counsel that the holders of the senior debt
securities of such series will not recognize income, gain or loss for
federal income tax purposes as a result of our exercising our option under
this provision of the indenture and will be subject to federal income tax
on the same amount and in the same manner and at the same times as would
have been the case if such deposit and defeasance had not occurred or a
ruling by the Internal Revenue Service to the same effect; and
o we have delivered to the trustee an officers' certificate and an
opinion of counsel, in each case stating that all conditions precedent
provided for in the indenture relating to the defeasance contemplated of
the senior debt securities of such series have been complied with.
Subsequent to the legal defeasance above, certain rights and obligations
under the senior indenture (such as our obligation to maintain an office or
agency in respect of such senior debt securities, to have moneys held for
payment in trust, to register the exchange of such senior debt securities, to
deliver such debt securities for replacement or to be canceled, to compensate
and indemnify the trustee and to appoint a successor trustee, and our right to
recover unclaimed money held by the trustee) shall survive until such senior
debt securities are no longer outstanding. After such senior debt securities
are no longer outstanding, only our obligations to compensate and indemnify the
trustee and our right to recover unclaimed money held by the trustee shall
survive.
Modification and Waiver
We and the trustee may amend or supplement the senior indenture or the
senior debt securities without the consent of any holder:
o to convey, mortgage or pledge any assets to the trustee as security
for the securities of one or more series;
o to evidence the succession of another corporation to us, and the
assumption by such successor corporation of our covenants, agreements
and obligations under the senior indenture;
o to cure any ambiguity, defect, or inconsistency in the senior
indenture; provided that such amendments or supplements shall not
adversely affect the interests of the holders in any material
respect;
o to comply with the provisions described under "--Certain Covenants
--Consolidation, Merger and Sale or Conveyance;
o to evidence and provide for the acceptance of appointment hereunder
by a successor trustee, or to make such changes as shall be necessary
to provide for or facilitate the administration of the trusts in the
senior indenture by more than one trustee;
o to establish the form or forms or terms of the senior debt securities
as permitted by the senior indenture;
o to make any change that does not adversely affect the rights of any
holder;
10
o to add to our covenants such new covenants, restrictions, conditions
or provisions for the protection of the holders, and to make the
occurrence, or the occurrence and continuance, of a default in any
such additional covenants, restrictions, conditions or provisions an
event of default; or
o to make any change so long as no senior debt securities are
outstanding.
Subject to certain conditions, modifications and amendments of the senior
indenture may be made by us and the trustee with the written consent of the
holders of a majority in principal amount of such series of senior debt
securities affected, and compliance by us with any provision of the indenture
with respect to such series of senior debt securities may be waived by written
notice to the trustee by the holders of a majority in principal amount of such
series of senior debt securities outstanding; provided, however, that each
affected holder must consent to any modification, amendment or waiver that,
o changes the stated maturity of the principal of, or any installment
of interest on, any senior debt securities of such series;
o reduces the principal amount of, or premium, if any, or interest on,
any senior debt securities of such series;
o changes the place or currency of payment of principal of, or premium,
if any, or interest on, any senior debt securities of such series;
o changes the provisions for calculating the optional redemption price,
including the definitions relating thereto;
o changes the provisions relating to the waiver of past defaults or
change or impair the right of holders to receive payment or to
institute suit for the enforcement of any payment of any senior debt
securities of such series on or after the due date therefor;
o reduces the above-stated percentage of outstanding senior debt
securities of such series the consent of whose holders is necessary
to modify or amend or to waive certain provisions of or defaults
under the indenture;
o waives a default in the payment of principal of or interest on the
senior debt securities;
o adversely affects the rights of such holder under any mandatory
redemption or repurchase provision or any right of redemption or
repurchase at the option of such holder; or
o modifies any of the provisions of this paragraph, except to increase
any required percentage or to provide that certain other provisions
cannot be modified or waived with the consent of the holder of each
senior debt security of such series affected by the modification.
It shall not be necessary for the consent of the holders under this
section of the indenture to approve the particular form of any proposed
amendment, supplement, or waiver, but it shall be sufficient if such consent
approves the substance thereof. After an amendment, supplement, or waiver under
this section of the indenture becomes effective, the trustee must give to the
holders affected thereby certain notice briefly describing the amendment,
supplement, or waiver. We will mail supplemental indentures to holders upon
request. Any failure by the trustee to give such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
supplemental indenture or waiver.
No Personal Liability of Incorporators,
Stockholders, Officers, Directors
The senior indenture provides that no recourse shall be had under or upon
any obligation, covenant, or agreement of ours in the indenture or any
supplemental indenture, or in any of the senior debt securities or because of
the creation of any indebtedness represented thereby, against any incorporator,
stockholder, officer, director of ours or of any successor person thereof under
any law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise. Each holder,
by accepting the senior debt securities, waives and releases all such
liability.
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Concerning the Trustee
The senior indenture provides that, except during the continuance of a
default, the trustee will not be liable, except for the performance of such
duties as are specifically set forth in the senior indenture. If an event of
default has occurred and is continuing, the trustee will exercise such rights
and powers vested in it under the senior indenture and will use the same degree
of care and skill in its exercise as a prudent person would exercise under the
circumstances in the conduct of such person's own affairs.
Governing Law
The indentures and the debt securities will be governed by, and construed
in accordance with, the internal laws of the State of New York.
The Trustees
We may have normal banking relationships with the trustees under the
indentures in the ordinary course of business.
Certain Terms of the Subordinated Debt
Securities
Other than the terms of the subordinated indenture and subordinated debt
securities relating to subordination, or otherwise as described in the
prospectus supplement relating to a particular series of subordinated debt
securities, the terms of the subordinated indenture and subordinated debt
securities are identical, in all material respects, to the terms of the senior
indenture and senior debt securities.
Subordination
The indebtedness evidenced by the subordinated debt securities is
subordinate to the prior payment in full of all Senior Indebtedness, as defined
in the subordinated indenture. During the continuance beyond any applicable
grace period of any default in the payment of principal, premium, interest or
any other payment due on any senior indebtedness, we may not make any payment
of principal of, or premium, if any, or interest on the subordinated debt
securities. In addition, upon any distribution of our assets upon any
dissolution, winding up, liquidation or reorganization, the payment of the
principal of, or premium, if any, and interest on the subordinated debt
securities is to be subordinated to the extent provided in the subordinated
indenture in right of payment to the prior payment in full of all senior
indebtedness. Because of this subordination, if we dissolve or otherwise
liquidate, holders of senior indebtedness may receive more, ratably, and
holders of our subordinated debt securities may receive less, ratably, than our
other creditors. The subordination provisions do not prevent the occurrence of
an event of default under the subordinated indenture.
The term "Senior Indebtedness" means the principal of, premium, if any,
interest on, and any other payment due pursuant to any of the following,
whether outstanding today or incurred by us in the future:
o all of our indebtedness for money borrowed, including any
indebtedness secured by a mortgage or other lien which is (1) given
to secure all or part of the purchase price of property subject to
the mortgage or lien, whether given to the vendor of that property or
to another lender, or (2) existing on property at the time we acquire
it;
o all of our indebtedness evidenced by notes, debentures, bonds or
other securities sold by us for money;
o all of our lease obligations which are capitalized on our books in
accordance with generally accepted accounting principles;
o all indebtedness of others of the kinds described in the first two
bullet points above and all lease obligations of others of the kind
described in the third bullet point above that we, in any manner,
assume or guarantee or that we in effect guarantee through an
agreement to purchase, whether that agreement is contingent or
otherwise; and
o all renewals, extensions or refundings of indebtedness of the kinds
described in the first, second or fourth bullet point above and all
renewals or extensions of leases of the kinds described in the third
or fourth bullet point above;
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unless, in the case of any particular indebtedness, lease, renewal, extension
or refunding, the instrument or lease creating or evidencing it or the
assumption or guarantee relating to it expressly provides that such
indebtedness, lease, renewal, extension or refunding is not superior in right
of payment to the subordinated debt securities. Our senior debt securities
constitute Senior Indebtedness for purposes of the subordinated debt indenture.
DESCRIPTION OF WARRANTS
General
We may issue warrants to purchase securities or rights of ours, including
rights to receive payment in cash or securities based on the value, rate or
price of one or more specified commodities, currencies or indices, or
securities of other issuers or any combination of the foregoing. Warrants may
be issued independently or together with any securities and may be attached to
or separate from such securities. Each series of warrants will be issued under
a separate warrant agreement to be entered into between us and a warrant agent.
The following sets forth certain general terms and provisions of the warrants
offered hereby. Further terms of the warrants and the applicable warrant
agreement will be set forth in the applicable prospectus supplement.
The applicable prospectus supplement will describe the following terms of
any warrants in respect of which this prospectus is being delivered:
o the title of such warrants;
o the aggregate number of such warrants;
o the price or prices at which such warrants will be issued;
o the currency or currencies, including composite currencies, in which
the price of such warrants may be payable;
o the securities or rights of ours, including rights to receive payment
in cash or securities based on the value, rate or price of one or
more specified commodities, currencies or indices, or securities of
other issuers or any combination of the foregoing purchasable upon
exercise of such warrants;
o the price at which and the currency or currencies, including
composite currencies, in which the securities purchasable upon
exercise of such warrants may be purchased;
o the date on which the right to exercise such warrants shall commence
and the date on which such right shall expire;
o if applicable, the minimum or maximum amount of such warrants which
may be exercised at any one time;
o if applicable, the designation and terms of the securities with which
such warrants are issued and the number of such warrants issued with
each such security;
o if applicable, the date on and after which such warrants and the
related securities will be separately transferable;
o information with respect to book-entry procedures, if any;
o if applicable, a discussion of certain United States Federal income
tax considerations; and
o any other terms of such warrants, including terms, procedures and
limitations relating to the exchange and exercise of such warrants.
13
DESCRIPTION OF PURCHASE CONTRACTS
We may issue purchase contracts for the purchase or sale of:
o our securities or securities of an entity unaffiliated or affiliated
with us, a basket of such securities, an index or indices of such
securities or any combination of the above as specified in the
applicable prospectus supplement;
o currencies or composite currencies; or
o commodities.
Each purchase contract will entitle the holder thereof to purchase or
sell, and obligate us to sell or purchase, on specified dates, such securities,
currencies or commodities at a specified purchase price, all as set forth in
the applicable prospectus supplement. We must, however, satisfy our
obligations, if any, with respect to any purchase contract by delivering the
cash value thereof or, in the case of underlying currencies, by delivering the
underlying currencies, as set forth in the applicable prospectus supplement.
The applicable prospectus supplement will also specify the methods by which the
holders may purchase or sell such securities, currencies or commodities and any
acceleration, cancellation or termination provisions or other provisions
relating to the settlement of a purchase contract.
Purchase contracts may require holders to satisfy their obligations
thereunder when the purchase contracts are issued. Our obligation to settle
such pre-paid purchase contracts on the relevant settlement date may constitute
indebtedness. Accordingly, the pre-paid purchase contracts will be issued under
one of the indentures.
DESCRIPTION OF UNITS
As specified in the applicable prospectus supplement, units will consist
of one or more purchase contracts, warrants or debt securities, or any
combination thereof. Reference is made to the applicable prospectus supplement
for:
o all terms of the units and of the purchase contracts, warrants, debt
securities, or any combination thereof, comprising the units,
including whether and under what circumstances the securities
comprising the units may or may not be traded separately;
o a description of the terms of any unit agreement governing the units;
and
o a description of the provisions for the payment, settlement, transfer
or exchange of the units. GLOBAL SECURITIES
We may issue the debt securities, warrants, purchase contracts and units
of any series in the form of one or more fully registered global securities
that will be deposited with a depositary or with a nominee for a depositary
identified in the prospectus supplement relating to such series and registered
in the name of the depositary or its nominee. In that case, one or more global
securities will be issued in a denomination or aggregate denominations equal to
the portion of the aggregate principal or face amount of outstanding registered
securities of the series to be represented by such global securities. Unless
and until the depositary exchanges a global security in whole for securities in
definitive registered form, the global 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 of its nominees to a successor of the depositary or a nominee
of such successor.
The specific terms of the depositary arrangement with respect to any
portion of a series of securities to be represented by a global security will
be described in the prospectus supplement relating to such series. We
anticipate that the following provisions will apply to all depositary
arrangements.
14
Ownership of beneficial interests in a global security will be limited to
persons that have accounts with the depositary for such global security known
as "participants" or persons that may hold interests through such participants.
Upon the issuance of a global security, the depositary for such global security
will credit, on its book-entry registration and transfer system, the
participants' accounts with the respective principal or face amounts of the
securities represented by such global security beneficially owned by such
participants. The accounts to be credited shall be designated by any dealers,
underwriters or agents participating in the distribution of such securities.
Ownership of beneficial interests in such global security will be shown on, and
the transfer of such ownership interests will be effected only through, records
maintained by the depositary for such global security (with respect to
interests of participants) and on the records of participants (with respect to
interests of persons holding through participants). The laws of some states may
require that certain purchasers of securities take physical delivery of such
securities in definitive form. Such limits and such laws may impair the ability
to own, transfer or pledge beneficial interests in global securities.
So long as the depositary for a global security, or its nominee, is the
registered owner of such global security, such depositary or such nominee, as
the case may be, will be considered the sole owner or holder of the securities
represented by such global security for all purposes under the applicable
indenture, warrant agreement, purchase contract, or unit agreement. Except as
set forth below, owners of beneficial interests in a global security will not
be entitled to have the securities represented by such global security
registered in their names, will not receive or be entitled to receive physical
delivery of such securities in definitive form and will not be considered the
owners or holders thereof under the applicable indenture, warrant agreement,
purchase contract, or unit agreement. Accordingly, each person owning a
beneficial interest in a global security must rely on the procedures of the
depositary for such global security and, if such person is not a participant,
on the procedures of the participant through which such person owns its
interest, to exercise any rights of a holder under the applicable indenture,
warrant agreement, purchase contract, or unit agreement. We understand that
under existing industry practices, if we request any action of holders or if an
owner of a beneficial interest in a global security desires to give or take any
action which a holder is entitled to give or take under the applicable
indenture, warrant agreement, purchase contract, or unit agreement, the
depositary for such global security would authorize the participants holding
the relevant beneficial interests to give or take such action, and such
participants would authorize beneficial owners owning through such participants
to give or take such action or would otherwise act upon the instructions of
beneficial owners holding through them.
Principal, premium, if any, and interest payments on debt securities, and
any payments to holders with respect to warrants, purchase contracts, preferred
securities, or units, represented by a global security registered in the name
of a depositary or its nominee will be made to such depositary or its nominee,
as the case may be, as the registered owner of such global security. None of
us, the trustees, the warrant agents, the unit agents or any of our other
agents, agent of the trustees or agent of the warrant agents or unit agents
will have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests in
such global security or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
We expect that the depositary for any securities represented by a global
security, upon receipt of any payment of principal, premium, interest or other
distribution of underlying securities or commodities to holders in respect of
such global security, will immediately credit participants' accounts in amounts
proportionate to their respective beneficial interests in such global security
as shown on the records of such depositary. We also expect that payments by
participants to owners of beneficial interests in such global security held
through such participants will be governed by standing customer instructions
and customary practices, as is now the case with the securities held for the
accounts of customers in bearer form or registered in "street name," and will
be the responsibility of such participants.
If the depositary for any securities represented by a global security is
at any time unwilling or unable to continue as depositary or ceases to be a
clearing agency registered under the Securities Exchange Act of 1934, and we do
not appoint a successor depositary registered as a clearing agency under the
Securities Exchange Act of 1934 within 90
15
days, we will issue such securities in definitive form in exchange for such
global security. In addition, we may at any time and in our sole discretion
determine not to have any of the securities of a series represented by one or
more global securities and, in such event, will issue securities of such series
in definitive form in exchange for all of the global security or securities
representing such securities. Any securities issued in definitive form in
exchange for a global security will be registered in such name or names as the
depositary shall instruct the relevant trustee, warrant agent or other relevant
agent of ours. We expect that such instructions will be based upon directions
received by the depositary from participants with respect to ownership of
beneficial interests in such global security.
PLAN OF DISTRIBUTION
We may sell the securities being offered hereby in four ways:
o directly to purchasers;
o through agents;
o through underwriters; and
o through dealers.
We may directly solicit offers to purchase securities, or we may designate
agents to solicit such offers. We will, in the prospectus supplement relating
to such offering, name any agent that could be viewed as an underwriter under
the Securities Act of 1933 and describe any commissions we must pay. Any such
agent will be acting on a best efforts basis for the period of its appointment
or, if indicated in the applicable prospectus supplement, on a firm commitment
basis. Agents, dealers and underwriters may be customers of, engage in
transactions with, or perform services for us in the ordinary course of
business.
If any underwriters are utilized in the sale of the securities in respect
of which this prospectus is delivered, we will enter into an underwriting
agreement with them at the time of sale to them and we will set forth in the
prospectus supplement relating to such offering their names and the terms of
our agreement with them.
If a dealer is utilized in the sale of the securities in respect of which
the prospectus is delivered, we will sell such securities to the dealer, as
principal. The dealer may then resell such securities to the public at varying
prices to be determined by such dealer at the time of resale.
Remarketing firms, agents, underwriters and dealers may be entitled under
agreements which they may enter into with us to indemnification by us against
certain civil liabilities, including liabilities under the Securities Act of
1933, and may be customers of, engage in transactions with or perform services
for us in the ordinary course of business.
If so indicated in the prospectus supplement, we will authorize agents and
underwriters to solicit offers by certain institutions to purchase debt
securities from us at the public offering price set forth in the prospectus
supplement pursuant to Delayed Delivery Contracts ("Contracts") providing for
payment and delivery on the date stated in the prospectus supplement. Such
Contracts will be subject only to those conditions set forth in the prospectus
supplement. A commission indicated in the prospectus supplement will be paid to
underwriters and agents soliciting purchases of debt securities pursuant to
Contracts accepted by us.
In order to facilitate the offering of the securities, any underwriters
may engage in transactions that stabilize, maintain or otherwise affect the
price of the securities or any other securities the prices of which may be used
to determine payments on such securities. Specifically, any underwriters may
overallot in connection with the offering, creating a short position for their
own accounts. In addition, to cover overallotments or to stabilize the price of
the securities or of any such other securities, the underwriters may bid for,
and purchase, the securities or any such other securities in the open market.
Finally, in any offering of the securities through a syndicate of underwriters,
the underwriting syndicate may reclaim selling concessions allowed to an
underwriter or a dealer for distributing the securities in the offering if the
syndicate repurchases previously distributed securities in transactions to
cover syndicate short positions, in stabilization transactions or otherwise.
16
Any of these activities may stabilize or maintain the market price of the
securities above independent market levels. Any such underwriters are not
required to engage in these activities, and may end any of these activities at
any time.
Any underwriter, agent or dealer utilized in the initial offering of
securities will not confirm sales to accounts over which it exercises
discretionary authority without the prior specific written approval of its
customer.
LEGAL MATTERS
The validity of the offered securities will be passed upon for us by Davis
Polk & Wardwell, New York, New York.
EXPERTS
Our consolidated financial statements and consolidated financial statement
schedule in our annual report on Form 10-K/A for the year ended December 31,
1998 have been audited by Ernst & Young LLP, independent auditors, as set forth
in their reports therein and incorporated herein by reference.
Such consolidated financial statements and consolidated financial
statement schedules have been incorporated herein by reference in reliance upon
the reports of such firm given upon their authority as experts in accounting
and auditing.
AVAILABLE INFORMATION
We have filed this prospectus as part of a registration statement on Form
S-3 with the SEC. The registration statement contains exhibits and other
information that are not contained in this prospectus. In particular, the
registration statement includes as exhibits a form of our underwriting
agreement, copies of our senior indenture and subordinated indenture, forms of
our debt security and subordinated debt security, a form of unit agreement, a
form of purchase contract agreement, a form of warrant agreement for warrants
sold alone, a form of warrant for warrants sold alone, a form of warrant
agreement for warrants sold attached to securities and a form of warrant for
warrants sold attached to securities. Our descriptions in this prospectus of
the provisions of documents filed as an exhibit to the registration statement
or otherwise filed with the SEC are only summaries of the documents' material
terms. If you want a complete description of the content of the documents, you
should obtain the documents yourself by following the procedures described
below.
We file annual, quarterly and special reports and other information with
the SEC. You may read and copy any document we file at the SEC's public
reference room located at 450 Fifth Street, N.W., Washington, D.C. 20549, at
Citicorp Center, 500 West Madison Street, Chicago, Illinois 60661 and at 7
World Trade Center, 13th Floor, New York, New York 10048. Please call the SEC
at 1-800-SEC-0330 for further information on the public reference rooms. You
may also read our SEC filings, including the complete registration statement
and all of the exhibits to it, through the SEC's web site at
http://www.sec.gov.
You should rely only on the information contained in this prospectus, in
the accompanying prospectus supplement and in material we file with the SEC. We
have not authorized anyone to provide you with information that is different.
We are offering to sell, and seeking offers to buy, the securities described in
the prospectus only where offers and sales are permitted. The information
contained in this prospectus, the prospectus supplement and our filings with
the SEC is accurate only as of its date, regardless of the time of delivery of
this prospectus and the prospectus supplement or of any sale of the securities.
17
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you directly to those documents. The information incorporated by
reference is considered to be part of this prospectus. In addition, information
we file with the SEC in the future will automatically update and supersede
information contained in this prospectus and any accompanying prospectus
supplement. We incorporate by reference the documents listed below, each of
which is filed under SEC File No. 1-3761, and any future filings made with the
SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934 until we sell all of the securities we are offering:
o Our annual report on Form 10-K, as amended by Form 10-K/A, for the
year ended December 31, 1998;
o Our quarterly report on Form 10-Q, as amended by Form 10-Q/A, and our
quarterly reports on Form 10-Q, for the fiscal quarters ended March
31, 1999, June 30, 1999, and September 30, 1999, respectively;
o Our current reports on Form 8-K dated October 15, 1999, May 23, 1999;
and
o Our Proxy Statement for our 1999 annual meeting of stockholders.
We will provide free copies of any of those documents, if you write or
telephone us at: 12500 TI Boulevard, P.O. Box 660199, Dallas, Texas 75266-
0199, Attention: Manager of Investor Relations, (972) 995-3773.
18
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. Other Expenses of Issuance and Distribution
All of the expenses in connection with the offering are as follows:
Securities and Exchange Commission registration fee................ $ 237,600 *
Legal fees and expenses............................................ 125,000 *
Printing and engraving fees........................................ 20,000 *
Accountants' fees and expenses..................................... 25,000 *
Miscellaneous...................................................... 10,000 *
----------
Total......................................................... $ 417,600 *
==========
- ---------
* Estimated
Item 15. Indemnification of Directors and Officers.
The General Corporation Law of the State of Delaware, at Section 145,
provides, in pertinent part, that a corporation may indemnify any person who
was or is a party or is threatened to be made a party to any threatened,
pending or complete action, suit or proceeding, whether civil, criminal,
administrative or investigative, other than an action by or in the right of the
corporation, by reason of the fact that he is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of
the corporation as the director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses, including attorneys' fees, judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful. In addition, the
indemnification of expenses, including attorneys' fees, is allowed in
derivative actions, except no indemnification is allowed in respect to any
claim, issue or matter as to which any such person has been adjudged to be
liable to the corporation, unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought decides that
indemnification is proper. To the extent that any such person succeeds on the
merits or otherwise, he shall be indemnified against expenses, including
attorney's fees, actually and reasonably incurred by him in connection
therewith. The determination that the person to be indemnified met the
applicable standard of conduct, if not made by a court, is made by the
directors of the corporation by a majority vote of the directors not party to
such an action, suit or proceeding even though less than a quorum, by a
committee of such directors designated by majority vote of such directors even
though less than a quorum, or if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion or by
the stockholders. Expenses may be paid in advance upon the receipt, in the case
of officers and directors, of undertakings to repay such amount if it shall
ultimately be determined that the person is not entitled to be indemnified by
the corporation as authorized in this section. A corporation may purchase
indemnity insurance.
The above described indemnification and advancement of expenses, unless
otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent and inure to the benefit of
such person's heirs, executors and administrators. Article VI, Section 2 of the
Texas Instruments Incorporated By-laws provides that Texas Instruments
Incorporated shall indemnify its officers and directors for such expenses,
judgments, fines and amounts paid in settlement to the full extent permitted by
the laws of the State of Delaware. Section 102(b)(7) of the General Corporation
Law of the State of Delaware, as amended, permits a
II-1
corporation to provide in its certificate of incorporation that a director of
the corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the General Corporation Law of the State of
Delaware, or (iv) for any transaction from which the director derived an
improper personal benefit. Article Seventh of Texas Instruments Incorporated
Restated Certificate of Incorporation contains such a provision.
Under insurance policies of Texas Instruments Incorporated, directors and
officers of Texas Instruments Incorporated may be indemnified against certain
losses arising from certain claims, including claims under the Securities Act
of 1933, which may be made against such persons by reason of their being such
directors or officers.
Item 16. Exhibits.
The following exhibits are filed as part of the Registration Statement:
Exhibit
Number Description
------- -----------
1.1 Form of Underwriting Agreement (Debt Securities, Warrants,
Purchase Contracts and Units).
1.2 Form of Underwriting Agreement Standard Provisions (Debt),
with form of Delayed Delivery Contract attached as Schedule I
thereto.
3 By-Laws (incorporated by reference to Exhibit 3 to our Current
Report on Form 8-K dated December 4, 1997).
4.1 Senior Indenture dated as of July 15, 1999 between the
Company and Citibank N.A., as Trustee (incorporated by
reference to the Exhibits filed with Texas Instruments
Incorporated Registration Statement No. 333-03571 on Form S-3
filed May 13, 1996).
4.2 Subordinated Indenture dated as of December 16, 1999 between
the Company and Chase Bank of Texas, National Association,
as Trustee.
4.3 Form of Senior Debt Security.
4.4 Form of Subordinated Debt Security.
4.5* Form of Purchase Contract Agreement relating to Purchase
Contracts (to be included in Exhibit 4.6).
4.6* Form of Unit Agreement.
4.7 Form of Warrant Agreement for Warrants Sold Alone.
4.8 Form of Warrant for Warrants Sold Alone (included in Exhibit
4.7).
4.9 Form of Warrant Agreement for Warrants Sold Attached to
Securities.
4.10 Form of Warrant for Warrants Sold Attached to Securities
(included in Exhibit 4.9).
5.1 Opinion of Richard J. Agnich, Esq.
5.2 Opinion of Davis Polk & Wardwell.
II-2
Exhibit
Number Description
------- -----------
12 Computation of Ratios of Earnings to Fixed Charges
(incorporated by reference to Exhibit 12 to our quarterly
report on Form 10-Q for the quarter ended September 30,
1999).
23.1** Consent of Ernst & Young LLP
23.2 Consent of Richard J. Agnich, Esq. (included in Exhibit 5.1).
23.3 Consent of Davis Polk & Wardwell (included in Exhibit 5.2).
25 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of Citibank, N.A., as Trustee under the
Senior Indenture.
25.1 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of Chase Bank of Texas, National
Association, as Trustee under the Subordinated Indenture.
- ---------
* To be filed with subsequent Current Report on Form 8-K.
** Filed herewith.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
1. (a) 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 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that subparagraphs (a) (i) and (a) (ii) shall not apply
to the extent that information required to be included in a post-effective
amendment by those subparagraphs is contained in periodic reports filed by
the registrant pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 (the "Exchange Act") that are incorporated by reference in the
Registration Statement.
(b) That, for the purpose of determining any liability under the
Securities Act, 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.
(c) 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.
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act
II-3
that is incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
3. If the securities to be registered are to be offered at competitive
bidding, the undersigned registrant hereby undertakes (1) to use its best
efforts to distribute prior to the opening of bids, to prospective bidders,
underwriters, and dealers, a reasonable number of copies of a prospectus which
at that time meets the requirements of Section 10(a) of the Securities Act, and
relating to the securities offered at competitive bidding, as contained in the
Registration Statement, together with any supplements thereto, and (2) to file
an amendment to the Registration Statement reflecting the results of bidding,
the terms of the reoffering and related matters to the extent required by the
applicable form, not later than the first use, authorized by the issuer after
the opening of bids, of a prospectus relating to the securities offered at
competitive bidding, unless no further public offering of such securities by
the issuer and no reoffering of such securities by the purchasers is proposed
to be made.
4. Insofar as indemnification for liabilities arising under the Securities
Act 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 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-4
SIGNATURES AND POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, Texas
Instruments Incorporated 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 Dallas, Texas, on December 16, 1999.
TEXAS INSTRUMENTS INCORPORATED
By: /s/ William A. Aylesworth
-------------------------------------
William A. Aylesworth
Senior Vice President,
Treasurer and
Chief Financial Officer
The registrant and each person whose signature appears below constitutes
and appoints each of Thomas J. Engibous, Richard J. Agnich, William A.
Aylesworth, and M. Samuel Self, or any of them, each acting alone, his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign and file (i) a registration statement, and any and all
amendments, thereto, relating to the offering covered hereby filed pursuant to
Rule 462(b) under the Securities Act of 1933, as amended, and (ii) any and all
amendments (including post-effective amendments) to this registration
statement, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent, full power and authority to do and perform each and
every act and thing requisite or necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
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/ James R. Adams
- -----------------------
James R. Adams Director December 16, 1999
/s/ David L. Boren
- -----------------------
David L. Boren Director December 16, 1999
/s/ James B. Busey IV
- -----------------------
James B. Busey IV Director December 16, 1999
/s/ Daniel A. Carp
- -----------------------
Daniel A. Carp Director December 16, 1999
/s/ Thomas J. Engibous
- ------------------------ Chairman of the Board; President;
Thomas J. Engibous Chief Executive Officer; Director December 16, 1999
II-5
Signature Title Date
--------- ----- ----
/s/ Gerald W. Fronterhouse
- ---------------------------
Gerald W. Fronterhouse Director December 16, 1999
/s/ David R. Goode
- ---------------------------
David R. Goode Director December 16, 1999
/s/ Wayne R. Sanders
- ---------------------------
Wayne R. Sanders Director December 16, 1999
/s/ Ruth J. Simmons
- ---------------------------
Ruth J. Simmons Director December 16, 1999
/s/ Clayton K. Yeutter
- ---------------------------
Clayton K. Yeutter Director December 16, 1999
/s/ William A. Aylesworth
- --------------------------- Senior Vice President; Treasurer;
William A. Aylesworth Chief Financial Officer December 16, 1999
/s/ M. Samuel Self
- --------------------------- Senior Vice President; Controller;
M. Samuel Self Chief-Accounting Officer December 16, 1999
II-6
EXHIBIT INDEX
Exhibit
Number Description
------- -----------
1.1 Form of Underwriting Agreement (Debt Securities, Warrants,
Purchase Contracts and Units).
1.2 Form of Underwriting Agreement Standard Provisions (Debt),
with form of Delayed Delivery Contract attached as Schedule I
thereto.
3 By-Laws (incorporated by reference to Exhibit 3 to our Current
Report on Form 8-K dated December 4, 1997).
4.1 Senior Indenture dated as of July 15, 1999 between the
Company and Citibank N.A., as Trustee (incorporated by
reference to the Exhibits filed with Texas Instruments
Incorporated Registration Statement No. 333-03571 on Form S-3
filed May 13, 1996).
4.2 Subordinated Indenture dated as of December 16, 1999 between
the Company and Chase Bank of Texas, National Association,
as Trustee.
4.3 Form of Senior Debt Security.
4.4 Form of Subordinated Debt Security.
4.5* Form of Purchase Contract Agreement relating to Purchase
Contracts (to be included in Exhibit 4.6).
4.6* Form of Unit Agreement.
4.7 Form of Warrant Agreement for Warrants Sold Alone.
4.8 Form of Warrant for Warrants Sold Alone (included in Exhibit
4.7).
4.9 Form of Warrant Agreement for Warrants Sold Attached to
Securities.
4.10 Form of Warrant for Warrants Sold Attached to Securities
(included in Exhibit 4.9).
5.1 Opinion of Richard J. Agnich, Esq.
5.2 Opinion of Davis Polk & Wardwell.
12 Computation of Ratios of Earnings to Fixed Charges
(incorporated by reference to Exhibit 12 to our quarterly
report on Form 10-Q for the quarter ended September 30,
1999).
23.1** Consent of Ernst & Young LLP
23.2 Consent of Richard J. Agnich, Esq. (included in Exhibit 5.1).
23.3 Consent of Davis Polk & Wardwell (included in Exhibit 5.2).
25 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of Citibank, N.A., as Trustee under the
Senior Indenture.
25.1 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of Chase Bank of Texas, National
Association, as Trustee under the Subordinated Indenture.
- ---------
* To be filed with subsequent Current Report on Form 8-K.
** Filed herewith.
EXHIBIT 1.1
UNDERWRITING AGREEMENT
Texas Instruments Incorporated
12500 TI Boulevard
Dallas, Texas 75266-0199
Dear Sirs:
We (the "Underwriters") understand that Texas Instruments Incorporated, a
Delaware corporation (the "Company"), proposes to issue and sell the principal
amount of its debt securities (the "Offered Debt Securities") identified in
Schedule I hereto, as more fully described in the Company's Prospectus
Supplement dated ____________ , 19__ relating to the Offered Debt Securities
and the Basic Prospectus dated __________, 1999.
Subject to the terms and conditions set forth herein or incorporated by
reference herein, the Underwriters offer to purchase, severally and not
jointly, at the respective purchase prices set forth in Schedule I hereto, the
principal amount of the Offered Debt Securities set forth opposite their
respective names in Schedule II hereto.
The Underwriters will pay for such Offered Debt Securities upon delivery
thereof at the offices of Davis Polk & Wardwell, 450 Lexington Avenue, New
York, New York 10017 at 10:00 A.M. (New York City time) on _________, 19__ or
at such other time, not later than __________, 19__ as shall be designated by
the Manager.
All the provisions contained in the document entitled Texas Instruments
Incorporated Underwriting Agreement Standard Provisions (Debt) dated ______,
1999, a copy of which we have previously received, are herein incorporated by
reference in their entirety and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in full herein,
except that the term "Manager", as used therein, shall, for purposes of this
Agreement, mean _______________, whose authority hereunder may be exercised by
them jointly or by __________ alone.
Please confirm your agreement by having an authorized officer sign a copy
of this Agreement in the space set forth below. This Agreement may be signed in
any number of counterparts with the same effect as if the signatures thereto
and hereto were upon the same instrument.
Very truly yours,
On behalf of themselves and the
other Underwriters named herein
By:___________________________
By:___________________________
Name:
Title:
Accepted as of the date written above:
TEXAS INSTRUMENTS INCORPORATED
By:___________________________________
Name:
Title:
2
SCHEDULE I TO UNDERWRITING AGREEMENT
Description of Offered Debt Securities:
Title:_____________________
Principal amount (including currency or composite currency):
U.S.$_____________________
Purchase price: $____________ [plus accrued interest from ______________]
Public offering price: $___________ [plus accrued interest from__________]
Underwriting discount: $____________
Interest rate: __% per annum, payable semi-annually on _____________ and
_________________.
Sinking fund provisions:________________
Redemption provisions:_________________
3
SCHEDULE II TO UNDERWRITING AGREEMENT
Principal Amount
of Offered Debt
Underwriter Securities to be Purchased
----------- --------------------------
Total
4
EXHIBIT 1.2
Texas Instruments Incorporated Underwriting Agreement
Standard Provisions (Debt)
____________, 1999
From time to time, Texas Instruments Incorporated, a Delaware corporation,
may enter into one or more underwriting agreements that provide for the sale of
designated securities to the several underwriters named therein. The standard
provisions set forth herein may be incorporated by reference in any such
underwriting agreement (an "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is
herein referred to as this Agreement. Unless otherwise defined herein, terms
defined in the Underwriting Agreement are used herein as therein defined.
I.
The Company proposes to issue and sell certain of its debt securities
("the Debt Securities") issuable under an indenture dated as of July 15, 1996
(the "Senior Indenture") between the Company and Citibank, N.A., as trustee
(the "Senior Indenture Trustee"), and an indenture dated as of December 16,
1999 (the "Subordinated Indenture") between the Company and Chase Bank of
Texas, National Association, as trustee (the "Subordinated Indenture Trustee")
(together the "Trustee" and "Indenture"), the applicable indenture of which
shall be identified in the Underwriting Agreement, in one or more offerings on
terms determined at the time of sale. The Debt Securities will have varying
designations, maturities, principal amounts, rates and times of payment of
interest, selling prices, and redemption terms.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement including a prospectus relating to the
Debt Securities and has filed with, or mailed for filing to, the Commission a
prospectus supplement specifically relating to the Offered Debt Securities
pursuant to Rule 424 under the Securities Act of 1933. The term "Registration
Statement" means the registration statement, including the exhibits thereto, as
amended to the date of the Underwriting Agreement. The term "Basic Prospectus"
means the prospectus included in the Registration Statement. The term
"Prospectus" means the Basic Prospectus together with the prospectus supplement
or supplements specifically relating to Debt Securities then being offered (the
"Offered Debt Securities"), as filed with, or mailed for filing to, the
Commission pursuant to Rule 424. The term "preliminary prospectus" means a
preliminary prospectus supplement specifically relating to the Offered Debt
Securities
together with the Basic Prospectus. As used herein, the terms "Registration
Statement", "Basic Prospectus", "Prospectus" and "preliminary prospectus" shall
include in each case the material, if any, incorporated by reference therein.
The term "Underwriters' Securities" means the Offered Debt Securities to
be purchased by the Underwriters herein. The term "Contract Securities" means
the Offered Debt Securities, if any, to be purchased pursuant to the delayed
delivery contracts referred to below.
II.
If the Prospectus provides for sales of Offered Debt Securities pursuant
to delayed delivery contracts, the Company hereby authorizes the Underwriters
to solicit offers to purchase Contract Securities on the terms and subject to
the conditions set forth in the Prospectus pursuant to delayed delivery
contracts substantially in the form of Schedule I attached hereto ("Delayed
Delivery Contracts") but with such changes therein as the Company may authorize
or approve. Delayed Delivery Contracts are to be with institutional investors
approved by the Company and of the types set forth in the Prospectus. On the
Closing Date (as hereinafter defined), the Company will pay the Manager as
compensation, for the accounts of the Underwriters, the fee set forth in the
Underwriting Agreement in respect of the principal amount of Contract
Securities. The Underwriters will not have any responsibility in respect of the
validity or the performance of Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the Contract Securities shall be deducted from the
offered Debt Securities to be purchased by the several Underwriters and the
aggregate principal amount to be purchased by each Underwriter shall be reduced
pro rata in proportion to the principal amount of Offered Debt Securities set
forth opposite each Underwriter's name in the Underwriting Agreement, except to
the extent that the Manager determines that such reduction shall be otherwise
and so advises the Company.
III.
The Company is advised by the Manager that the Underwriters propose to
make a public offering of their respective portions of the Underwriters'
Securities as soon after this Agreement is entered into as in the Manager's
judgment is advisable. The terms of the public offering of the Underwriters'
Securities are set forth in the Prospectus.
IV.
2
Payment for the Underwriters' Securities shall be made by certified or
official bank check or checks payable to the order of the Company in New York
Clearing House funds at the time and place set forth in the Underwriting
Agreement, upon delivery to the Manager for the respective accounts of the
several Underwriters of the Underwriters' Securities registered in such names
and in such denominations as the Manager shall request in writing not less than
two full business days prior to the date of delivery. The time and date of such
payment and delivery with respect to the Underwriters' Securities are herein
referred to as the Closing Date.
V.
The several obligations of the Underwriters hereunder are subject to the
following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission and there shall have been
no material adverse change (not in the ordinary course of business) in the
condition of the Company and its subsidiaries, taken as a whole, from that
set forth in or contemplated by the Registration Statement and the
Prospectus; and the Underwriters shall have received, on the Closing Date,
a certificate, dated the Closing Date and signed by an executive officer
of the Company, to the foregoing effect. Such certificate shall also
provide that the representations and warranties of the Company contained
herein are true and correct as of the Closing Date. The officer making
such certificate may rely upon the best of his knowledge as to proceedings
pending or threatened.
(b) The Manager shall have received on the Closing Date an opinion of
Richard J. Agnich, Esq., Senior Vice President, Secretary and General
Counsel of the Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of
Delaware and has full corporate power and authority to own its
properties and conduct its business as presently conducted;
(ii) the Company is duly qualified to transact business and is
in good standing in each other state of the United States, wherein it
owns or leases material property or conducts material business, which
requires such qualification, except to the extent that the
3
failure to be so qualified or be in good standing would not have a
material adverse effect on the Company;
(iii) the Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company and the Senior Indenture or Subordinated Indenture, as
appropriate, is qualified under the Trust Indenture Act of 1939;
(iv) the Offered Debt Securities have been duly authorized and,
when executed and authenticated in accordance with the Indenture and
when delivered to and paid for by the Underwriters or by
institutional investors, if any, pursuant to Delayed Delivery
Contracts, will be valid and binding obligations of the Company and
will be entitled to the benefits of the Indenture;
(v) this Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company, except as rights to indemnity hereunder may be limited under
applicable law;
(vi) the Offered Debt Securities conform in all material
respects to the description thereof contained in the Prospectus, as
then amended or supplemented, if applicable, under the caption
"Description of Debt Securities";
(vii) the Registration Statement, and any amendments thereto, is
effective under the Securities Act of 1933, and, to the best of such
counsel's knowledge, no proceedings for a stop order are pending or
threatened by the Commission;
(viii) the execution, delivery and performance of the
Underwriting Agreement, the Offered Debt Securities and the Indenture
will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Company or, to the
knowledge of such counsel, any agreement or other instrument binding
upon the Company, and no consent, approval or authorization of any
governmental body or agency is required for the performance by the
Company of its obligations under the Underwriting Agreement, the
Offered Debt Securities and the Indenture, except such as are
specified and have been obtained and such as may be required by the
securities or Blue Sky laws of the various states in connection with
the purchase and distribution of the Offered Debt Securities by the
Underwriters;
4
(ix) the statements in the Prospectus under the captions
"Description of Debt Securities" and "Plan of Distribution", insofar
as they constitute summaries of documents or proceedings referred to
therein, are accurate summaries in all material respects of such
documents and proceedings;
(x) after due inquiry, such counsel does not know of any legal
or governmental proceedings pending or threatened to which the
Company or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject that
are required to be described in the Registration Statement or the
Prospectus and are not so described or of any contract or other
document that is required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement that is not described or filed as required;
and
(xi) such counsel (1) is of the opinion that each document, if
any, filed pursuant to the Securities Exchange Act of 1934 (except
for financial statements included therein, as to which such counsel
need not express any opinion) and incorporated by reference in the
Registration Statement and Prospectus complied when so filed as to
form in all material respects with such Act and the rules and
regulations thereunder, (2) has no knowledge that (except for the
financial statements contained therein, as to which such counsel need
not express any belief) any part of the Registration Statement
(including the documents incorporated by reference therein) filed
with the Commission pursuant to the Securities Act of 1933 relating
to the Offered Debt Securities, when such part became effective,
contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make
the statements therein not misleading, (3) is of the opinion that the
Registration Statement and Prospectus, as amended or supplemented, if
applicable (except for financial statements included therein, as to
which such counsel need not express any opinion), comply as to form
in all material respects with the Securities Act of 1933 and the
rules and regulations thereunder and (4) has no knowledge that
(except for the financial statements contained therein, as to which
such counsel need not express any belief) the Prospectus, as amended
or supplemented, if applicable, contains any untrue statement of a
material fact or omits to state a material fact necessary in order to
5
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(c) The Manager shall have received on the Closing Date an opinion of
Davis Polk & Wardwell, counsel for the Underwriters, dated the Closing
Date, to the effect set forth in (iii), (iv), (v), (vii), (ix) (as to
"Description of Debt Securities") and (xi) of (b) above, and further to
the effect that statements in the Prospectus under the caption "Plan of
Distribution", insofar as such statements constitute a summary of the
documents referred to therein, are accurate summaries of the material
provisions of such documents.
It is understood that Richard J. Agnich, Esq. may rely as to all matters
relating to the laws of the State of New York upon the opinion of Davis Polk &
Wardwell.
With respect to the matters set forth in (b)(xi) above, Richard J. Agnich,
Esq., and Davis Polk & Wardwell may state that their belief is based upon
participation by them in the preparation of the Registration Statement
(excluding any documents incorporated by reference therein) and review and
discussion of the contents thereof (including any such incorporated documents),
but is without independent check or verification, except as specified.
(d) The Manager shall have received on the Closing Date a letter
dated the Closing Date, in form and substance satisfactory to the Manager,
from the Company's independent public accountants, containing statements
and information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained or incorporated by reference in
the Registration Statement and the Prospectus.
(e) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any downgrading,
nor shall any notice have been given of (i) any intended or potential
downgrading or (ii) any review or possible change that, in the Manager's
opinion, indicates an intended or potential downgrading in the rating
accorded any of the Company's securities by any "nationally recognized
statistical rating organization", as such term is defined for purposes of
Rule 436(g)(2) under the Securities Act of 1933, that, in the Manager's
judgment, is material and adverse and that makes it, in the Manager's
judgment, impracticable to market the Offered Debt Securities on the
terms, in the manner and substantially at the price contemplated in the
Prospectus.
6
(f) There shall not have occurred any change, or any event that is
reasonably likely to cause a change, in the financial condition of the
Company and its subsidiaries, taken as a whole, from that set forth in or
contemplated by the Registration Statement and the Prospectus, that, in
the Manager's judgment, is material and adverse and that makes it, in the
manager's judgment, impracticable to market the Offered Debt Securities on
the terms, in the manner and substantially at the price contemplated in
the Prospectus.
VI.
In further consideration of the agreements of the Underwriters contained
in this Agreement, the Company covenants as follows:
(a) To furnish the Manager, without charge, three copies of the
Registration Statement, including exhibits and materials, if any,
incorporated by reference therein, and, during the period mentioned in
paragraph (c) below, as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments
thereto as the Manager may reasonably request. The terms "supplement" and
"amendment" or "amend" as used in this Agreement shall include all
documents filed by the Company with the Commission subsequent to the date
of the Basic Prospectus, pursuant to the Securities Exchange Act of 1934,
which are deemed to be incorporated by reference in the Prospectus.
(b) Before amending or supplementing the Registration Statement or
the Prospectus with respect to the Offered Debt Securities, to furnish the
Manager a copy of each such proposed amendment or supplement.
(c) If, during such period after the first date of the public
offering of the Offered Debt Securities as in the opinion of counsel for
the Underwriters the Prospectus is required by law to be delivered, any
event shall occur or condition shall exist as a result of which it is
necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus
is delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus to comply with law, forthwith to
prepare and furnish, at its own expense, to the Underwriters, either
amendments or supplements to the Prospectus so that the statements in the
7
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with law.
(d) To qualify the Offered Debt Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Manager shall
reasonably request and to pay all expenses (including fees and
disbursements of counsel) in connection with such qualification.
(e) To make generally available to the Company's security holders as
soon as practicable an earning statement covering a twelve month period
beginning after the date of the Underwriting Agreement, which shall
satisfy the provisions of Section 11(a) of the Securities Act of 1933 and
the applicable rules and regulations thereunder; it being intended that
the Company will satisfy the foregoing obligations by making available
copies of its annual report on Form 10-K and its current reports on Form
10-Q.
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date, not to offer,
sell, contract to sell or otherwise dispose of any debt securities of the
Company substantially similar to the Offered Debt Securities without the
prior written consent of the Manager.
VII.
The Company represents and warrants to each Underwriter that (i) each
document, if any, filed or to be filed pursuant to the Securities Exchange Act
of 1934 and incorporated by reference in the Prospectus complied or will comply
when so filed in all material respects with such Act and the rules and
regulations thereunder, (ii) each part of the Registration Statement (including
the documents incorporated by reference therein) filed with the Commission
pursuant to the Securities Act of 1933 relating to the Offered Debt Securities,
when such part became effective, did not contain any untrue statement of
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (iii) each preliminary
prospectus, if any, filed pursuant to Rule 424 under the Securities Act of 1933
complied when so filed in all material respects with such Act and the
applicable rules and regulations thereunder, (iv) the Registration Statement
and the Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Securities Act of 1933 and the
applicable rules and regulations thereunder and
8
(v) the Registration Statement and the Prospectus do not contain and, as
amended or supplemented, if applicable, will not contain any untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; except that these representations and warranties do not
apply to (a) that part of the Registration Statement that constitutes the
Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture
Act of 1939 of the Trustee under the Indenture, or (b) statements or omissions
in the Registration Statement, any preliminary prospectus or the Prospectus
based upon information furnished to the Company in writing by any Underwriter
expressly for use therein.
The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls such Underwriter within the meaning of either
Section 15 of the Securities Act of 1933 or Section 20 of the Securities
Exchange Act of 1934, from and against any and all losses, claims, damages and
liabilities (including the reasonable fees and expenses of counsel in
connection with any governmental or regulatory investigation or proceeding)
caused by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, any preliminary prospectus or the
Prospectus (if used within the period set forth in paragraph (c) of Article VI
hereof and as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
furnished to the Company in writing by any Underwriter expressly for use
therein.
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company to the same extent
as the foregoing indemnity from the Company to each Underwriter, but only with
reference to information relating to such Underwriter furnished to the Company
in writing by such Underwriter expressly for use in the Registration Statement,
any preliminary prospectus or the Prospectus.
In case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the
9
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 connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm (in addition to any local counsel) for
all such indemnified parties and that all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing by
the Manager in the case of parties indemnified pursuant to the second preceding
paragraph and by the Company in the case of parties indemnified pursuant to the
first preceding paragraph. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent but, if
settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the third sentence of this
paragraph, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 10 business days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is
or could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are the
subject matter of such proceeding.
If the indemnification provided for in this Article VII under the second
or third paragraphs hereof is unavailable in respect of any losses, claims,
damages or liabilities referred to therein, then each indemnifying party under
such paragraph, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the
10
other from the offering of the Offered Debt Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law,
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other in connection with the offering of the Offered Debt Securities
shall be deemed to be in the same proportion as the net proceeds from the
offering of such Offered Debt Securities (before deducting expenses) received
by the Company bear to the total underwriting discounts and commissions
received by the Underwriters in respect thereof, in each case as set forth in
the table on the cover of the Prospectus. The relative fault of the Company on
the one hand and of the Underwriters on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article VII were determined by pro
rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Article VII, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Debt Securities underwritten by
it and distributed to the public were offered to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act of 1933) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Article VII are several, in proportion to the respective principal amounts of
Offered Debt Securities purchased by each of such Underwriters, and not joint.
The indemnity and contribution agreements contained in this Article VII
and the representations and warranties of the Company in this Agreement shall
11
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of any
Underwriter or on behalf of any Underwriter or any person controlling any
Underwriter or by or on behalf of the Company, its directors or officers or any
person controlling the Company and (iii) acceptance of and payment for any of
the Offered Debt Securities.
VIII.
This Agreement shall be subject to termination in the Manager's absolute
discretion, by notice given to the Company, if (a) after the execution and
delivery of this Agreement and prior to the Closing Date (i) trading generally
shall have been suspended or materially limited on or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange or the National
Association of Securities Dealers, Inc., (ii) trading of any securities of the
Company shall have been suspended on the New York Stock Exchange or in the U.S.
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities, or (iv) there shall have occurred any outbreak or escalation
of hostilities or a severe deterioration in U.S. financial markets or any other
calamity or crisis that is material and adverse and (b) in the case of any of
the events specified in clauses (a) (i) through (iv), such event singly or
together with any other such event makes it, in the Manager's judgment,
impracticable to market the Offered Debt Securities on the terms, in the manner
and substantially at the price contemplated in the Prospectus. Any such
termination of this Agreement shall be without liability on the part of any
Manager or on the part of the Company except as stated in Article IX.
IX.
If on the Closing Date any one or more of the Underwriters shall fail or
refuse to purchase Underwriters' Securities that it or they have agreed to
purchase on such date, and the aggregate principal amount of Underwriters'
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate principal
amount of the Underwriters' Securities to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the principal
amount of Offered Debt Securities set forth opposite their respective names in
the Underwriting Agreement bears to the aggregate principal amount of Offered
Debt Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Manager may specify, to
purchase the Underwriters' Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the principal amount of
12
Underwriters' Securities that any Underwriter has agreed to purchase pursuant
to the Underwriting Agreement be increased pursuant to this Article IX by an
amount in excess of one-ninth of such principal amount of Underwriters'
Securities without the written consent of such Underwriter. If on the Closing
Date any Underwriter or Underwriters shall fail or refuse to purchase
Underwriters' Securities and the aggregate principal amount of Underwriters'
Securities with respect to which such default occurs is more than one-tenth of
the aggregate principal amount of Underwriters' Securities to be purchased on
such date, and arrangements satisfactory to the Underwriters and the Company
for the purchase of such Underwriters' Securities are not made within 36 hours
after such default, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriter or the Company. In any such case either
the Underwriters or the Company shall have the right to postpone the Closing
Date but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement, with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with the
Offered Debt Securities.
This Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
13
Schedule I
DELAYED DELIVERY CONTRACT
_________________, 19__
Dear Sirs:
The undersigned hereby agrees to purchase from Texas Instrument
Incorporated, a Delaware corporation (the "Company"), and the Company agrees to
sell to the undersigned the principal amount of its debt securities (the
"Offered Debt Securities") identified herein, as more fully described in the
Company's Prospectus Supplement dated _________________ relating to the Offered
Debt Securities and in the Prospectus dated ________________, 1999. Such
agreement to purchase and sell is made on the further terms and conditions set
forth in this contract. The undersigned does not contemplate selling Offered
Debt Securities prior to making payment therefor.
Receipt of copies of the Prospectus and of the Prospectus Supplement is
hereby acknowledged.
The undersigned will purchase the Offered Debt Securities from the Company
on ____________, 19__, hereinafter referred to as the "Delivery Date".
Payment for the Offered Debt Securities which the undersigned has agreed
to purchase on the Delivery Date shall be made to the Company or its order by
certified or official bank check in New York Clearing House funds at the office
of ______________________ New York, N.Y., at 10:00 A.M. (New York time) on the
Delivery Date, upon delivery to the undersigned of the Offered Debt Securities
to be purchased by the undersigned on the Delivery Date, in such denominations
and registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five full
business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
the Offered Debt Securities on the Delivery Date shall be subject to the
conditions that (1) the purchase of Offered Debt Securities to be made by the
undersigned shall not at the time of delivery be prohibited under the laws of
the jurisdiction to which the undersigned is subject and (2) the Company shall
have sold, and delivery shall have taken place to the underwriters (the
"Underwriters") named in the Prospectus Supplement referred to above of, such
part of the Offered Debt Securities as is to be sold to them. Promptly after
completion of sale and delivery to the Underwriters, the Company will mail or
deliver to the undersigned
at its address set forth below notice to such effect, accompanied by a copy of
the opinion of counsel for the Company delivered to the Underwriters in
connection therewith.
Failure to take delivery of and make payment for Offered Debt Securities
by any purchaser under any other Delayed Delivery Contract shall not relieve
the undersigned of its obligations under this contract.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
If this contract is acceptable to the Company, it is requested that the
Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This
will become a binding contract, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
THIS CONTRACT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
Yours very truly,
------------------------------
(Purchaser)
By:
---------------------------
------------------------------
(Title)
------------------------------
------------------------------
(Address)
Accepted:
Texas Instruments Incorporated
By_________________________________
2
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
---- --------------------- ----------
3
EXHIBIT 4.2
================================================================================
TEXAS INSTRUMENTS INCORPORATED
AND
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, Trustee
INDENTURE
Dated as of December 16, 1999
---------
SUBORDINATED SECURITIES
================================================================================
TABLE OF CONTENTS
----------------------
PAGE
----
ARTICLE 1
DEFINITIONS
SECTION 1.01. Certain Terms Defined...........................................1
ARTICLE 2
SECURITIES
SECTION 2.01. Forms Generally.................................................9
SECTION 2.02. Form of Trustee's Certificate of Authentication................10
SECTION 2.03. Amount Unlimited; Issuable in Series...........................10
SECTION 2.04. Authentication and Delivery of Securities......................13
SECTION 2.05. Execution of Securities........................................15
SECTION 2.06. Certificate of Authentication..................................15
SECTION 2.07. Denomination and Date of Securities; Payments of Interest......16
SECTION 2.08. Registration, Transfer and Exchange............................17
SECTION 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen Securities......20
SECTION 2.10. Cancellation of Securities; Destruction Thereof................22
SECTION 2.11. Temporary Securities...........................................22
ARTICLE 3
COVENANTS OF THE ISSUER
SECTION 3.01. Payment of Principal and Interest..............................23
SECTION 3.02. Offices for Payments, Etc......................................23
SECTION 3.03. Appointment to Fill a Vacancy in Office of Trustee.............25
SECTION 3.04. Paying Agents..................................................25
SECTION 3.05. Written Statement to Trustee...................................26
SECTION 3.06. Limitation on Liens............................................26
SECTION 3.07. Limitation on Sale and Leaseback...............................28
SECTION 3.08. Luxembourg Publications........................................30
PAGE
----
ARTICLE 4
SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE
SECTION 4.01. Issuer to Furnish Trustee Information as to Names and Addresses
of Securityholders...................................................30
SECTION 4.02. Reports by the Issuer..........................................31
SECTION 4.03. Reports by the Trustee.........................................31
ARTICLE 5
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 5.01. Event of Default Defined; Acceleration of Maturity; Waiver of
Default..............................................................31
SECTION 5.02. Collection of Debt by Trustee; Trustee May Prove Debt..........34
SECTION 5.03. Application of Proceeds........................................36
SECTION 5.04. Suits for Enforcement..........................................37
SECTION 5.05. Restoration of Rights on Abandonment of Proceedings............37
SECTION 5.06. Limitations on Suits by Securityholders........................38
SECTION 5.07. Unconditional Right of Securityholders to Institute Certain Suits
....................................................................38
SECTION 5.08. Powers and Remedies Cumulative; Delay or Omission Not Waiver
of Default...........................................................39
SECTION 5.09. Control by Holders of Securities...............................39
SECTION 5.10. Waiver of Past Defaults........................................40
SECTION 5.11. Trustee to Give Notice of Default, but May Withhold in Certain
Circumstances........................................................40
SECTION 5.12. Right of Court to Require Filing of Undertaking to Pay Costs...41
ARTICLE 6
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of the Trustee; During Default;
Prior to Default.....................................................41
SECTION 6.02. Certain Rights of the Trustee..................................43
SECTION 6.03. Trustee Not Responsible for Recitals, Disposition of Securities
or Application of Proceeds Thereof...................................44
SECTION 6.04. Trustee and Agents May Hold Securities or Coupons; Collections,
Etc..................................................................44
SECTION 6.05. Moneys Held by Trustee.........................................44
SECTION 6.06. Compensation and Indemnification of Trustee and its Prior Claim
....................................................................45
ii
PAGE
----
SECTION 6.07. Right of Trustee to Rely on Officers' Certificate, Etc.........45
SECTION 6.08. Indentures Creating Potential Conflicting Interests for the
Trustee..............................................................46
SECTION 6.09. Persons Eligible for Appointment as Trustee....................46
SECTION 6.10. Resignation and Removal; Appointment of Successor Trustee......46
SECTION 6.11. Acceptance of Appointment by Successor Trustee.................48
SECTION 6.12. Merger, Conversion, Consolidation, or Succession to Business of
Trustee..............................................................49
ARTICLE 7
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Evidence of Action Taken by Securityholders....................50
SECTION 7.02. Proof of Execution of Instruments and of Holding of Securities
....................................................................50
SECTION 7.03. Holders to Be Treated as Owners................................51
SECTION 7.04. Securities Owned by Issuer Deemed Not Outstanding..............52
SECTION 7.05. Right of Revocation of Action Taken............................53
ARTICLE 8
SUPPLEMENTAL INDENTURES
SECTION 8.01. Supplemental Indentures Without Consent of Securityholders.....53
SECTION 8.02. Supplemental Indentures With Consent of Securityholders........54
SECTION 8.03. Effect of Supplemental Indenture...............................56
SECTION 8.04. Documents to Be Given to Trustee...............................56
SECTION 8.05. Notation on Securities in Respect of Supplemental Indentures...57
ARTICLE 9
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.01. Issuer May Consolidate, Etc., on Certain Terms.................57
SECTION 9.02. Successor Issuer Substituted...................................58
SECTION 9.03. Opinion of Counsel and Officers' Certificate to Trustee........58
ARTICLE 10
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 10.01. Satisfaction and Discharge of Indenture.......................59
SECTION 10.02. Application by Trustee of Funds Deposited for Payment of
Securities...........................................................62
iii
PAGE
----
SECTION 10.03. Repayment of Moneys Held by Paying Agent......................62
SECTION 10.04. Return of Moneys Held by Trustee and Paying Agent Unclaimed
for Two Years........................................................62
SECTION 10.05. Indemnity for U.S. Government Obligations.....................63
ARTICLE 11
MISCELLANEOUS PROVISIONS
SECTION 11.01. Incorporators, Stockholders, Officers and Directors of Issuer
Exempt from Individual Liability.....................................63
SECTION 11.02. Provisions of Indenture for the Sole Benefit of Parties and
Holders of Securities and Coupons....................................63
SECTION 11.03. Successors and Assigns of Issuer Bound by Indenture...........64
SECTION 11.04. Notices and Demands on Issuer, Trustee and Holders of
Securities and Coupons...............................................64
SECTION 11.05. Officers' Certificates and Opinions of Counsel; Statements to Be
Contained Therein....................................................65
SECTION 11.06. Payments Due on Saturdays, Sundays and Holidays...............66
SECTION 11.07. Conflict of Any Provision of Indenture with Trust Indenture Act
of 1939..............................................................67
SECTION 11.08. New York Law to Govern........................................67
SECTION 11.09. Counterparts..................................................67
SECTION 11.10. Effect of Headings............................................67
SECTION 11.11. Securities in a Foreign Currency or in euro...................67
SECTION 11.12. Judgment Currency.............................................68
ARTICLE 12
SUBORDINATION OF SECURITIES
SECTION 12.01. Agreement of Subordination....................................69
SECTION 12.02. Payments to Securityholders...................................69
SECTION 12.03. Subrogation of Securities.....................................71
SECTION 12.04. Authorization by Securityholders..............................72
SECTION 12.05. Notice to Trustee.............................................72
SECTION 12.06. Trustee's Relation to Senior Indebtedness.....................73
SECTION 12.07. No Impairment of Subordination................................73
SECTION 12.08. Rights of Trustee.............................................74
iv
PAGE
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ARTICLE 13
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 13.01. Applicability of Article......................................74
SECTION 13.02. Notice of Redemption; Partial Redemptions.....................74
SECTION 13.03. Conversion Arrangement on Call for Redemption.................76
SECTION 13.04. Payment of Securities Called for Redemption...................77
SECTION 13.05. Exclusion of Certain Securities from Eligibility for Selection
for Redemption.......................................................78
SECTION 13.06. Mandatory and Optional Sinking Funds..........................78
ARTICLE 14
CONVERSION OF SECURITIES
SECTION 14.01. Applicability of Article......................................81
SECTION 14.02. Exercise of Conversion Privilege..............................81
SECTION 14.03. Fractional Interests..........................................83
SECTION 14.04. Adjustment of Conversion Price................................84
SECTION 14.05. Continuation of Conversion Privilege in Case of
Reclassification, Reorganization, Change, Merger, Consolidation
or Sale of Assets...................................................87
SECTION 14.06. Notice of Certain Events......................................88
SECTION 14.07. Taxes on Conversion...........................................89
SECTION 14.08. Issuer to Provide Common Stock................................89
SECTION 14.09. Disclaimer of Responsibility for Certain Matters..............90
SECTION 14.10. Return of Funds Deposited for Redemption of Converted
Securities...........................................................91
v
THIS INDENTURE, dated as of December 16, 1999 between TEXAS INSTRUMENTS
INCORPORATED, a Delaware corporation (the "Issuer"), and CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION, a national banking corporation (the "Trustee"),
W I T N E S S E T H :
WHEREAS, the Issuer may from time to time duly authorize the issue of
its unsecured subordinated debentures, notes or other evidences of indebtedness
to be issued in one or more series (the "Securities") up to such principal
amount or amounts as may from time to time be authorized in accordance with the
terms of this Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery of
this Indenture to provide, among other things, for the authentication, delivery
and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by
the holders thereof, the Issuer and the Trustee mutually covenant and agree for
the equal and proportionate benefit of the respective holders from time to time
of the Securities and of the Coupons, if any, appertaining thereto as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture Act of 1939 or
the definitions of which in the Securities Act of 1933 are referred to in the
Trust Indenture Act of 1939, including terms defined therein by reference to the
Securities Act of 1933 (except as herein otherwise expressly provided or unless
the context otherwise clearly requires), shall have the meanings assigned to
such terms in said Trust Indenture Act and in said Securities Act as in force at
the date of this Indenture. All accounting terms used herein and not expressly
defined shall have the
meanings assigned to such terms in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles" means such
accounting principles as are generally accepted at the time of any computation.
The words "herein", "hereof" and "hereunder" and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or
other subdivision. The terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular.
"Attributable Debt" shall have the meaning set forth in Section 3.07.
"Authorized Newspaper" means a newspaper (which, in the case of The
City of New York, will, if practicable, be The Wall Street Journal (Eastern
Edition), in the case of the United Kingdom, will, if practicable, be the
Financial Times (London Edition) and, in the case of Luxembourg, will, if
practicable, be the Luxemburger Wort) published in an official language of the
country of publication customarily published at least once a day for at least
five days in each calendar week and of general circulation in The City of New
York, the United Kingdom or in Luxembourg, as applicable. If it shall be
impractical in the opinion of the Trustee to make any publication of any notice
required hereby in an Authorized Newspaper, any publication or other notice in
lieu thereof which is made or given with the approval of the Trustee shall
constitute a sufficient publication of such notice.
"Board of Directors" means either the Board of Directors of the Issuer
or any committee of such Board duly authorized to act on its behalf.
"Board Resolution" means a copy of one or more resolutions, certified
by the secretary or an assistant secretary of the Issuer to have been duly
adopted by the Board of Directors and to be in full force and effect, and
delivered to the Trustee.
"Business Day" means, with respect to any Security, a day that in the
city (or in any of the cities, if more than one) in which amounts are payable,
as specified in the form of such Security, is not a day on which banking
institutions are authorized or required by law or regulation to close.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or if at
any time after the execution and delivery of this Indenture such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act of 1939, then the body performing such duties on such date.
2
"Common Stock" means shares of common stock, par value $1.00 per share,
of the Issuer as the same exists at the date of execution and delivery of this
Indenture or as such stock may be reconstituted from time to time.
"Composite Rate" means, at any time, the rate of interest, per annum,
compounded semiannually, equal to the sum of the rates of interest borne by the
Securities of each series (as specified on the face of the Securities of each
series; provided, that, in the case of the Securities with variable rates of
interest, the interest rate to be used in calculating the Composite Rate shall
be the interest rate applicable to such Securities at the beginning of the year
in which the Composite Rate is being determined and provided, further, that, in
the case of Securities which do not bear interest, the interest rate to be used
in calculating the Composite Rate shall be a rate equal to the yield to maturity
on such Securities, calculated at the time of issuance of such Securities)
multiplied, in the case of each series of Securities, by the percentage of the
aggregate principal amount of the Securities of all series Outstanding
represented by the Outstanding Securities of such series. For the purposes of
this calculation, the aggregate principal amounts of Outstanding Securities that
are denominated in a foreign currency, shall be calculated in the manner set
forth in Section 11.11.
"Consolidated Net Tangible Assets" means, at any date, the total assets
appearing on the audited annual consolidated balance sheet of the Issuer and its
Subsidiaries for the Issuer's most recently completed fiscal year, prepared in
accordance with generally accepted accounting principles, less (a) all current
liabilities as shown on such balance sheet, and (b) intangible assets.
"Intangible assets" means the value (net of applicable reserves), as shown on or
reflected in such balance sheet, of: (i) all trade names, trademarks, licenses,
patents, copyrights and goodwill; (ii) organizational or development costs;
(iii) deferred charges (other than prepaid items such as insurance, taxes,
interest, commissions, rents and similar items and tangible assets being
amortized); and (iv) unamortized debt discount and expenses, less unamortized
premium; but in no event shall the term "intangible assets" include computer
programs and related products.
"Conversion Price" means the principal amount of the Securities of a
series convertible into one share of Common Stock, subject to adjustment in
accordance with Section 14.04.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located at 600 Travis Street, Suite 1150, Houston, TX 77002.
"Coupon" means any interest coupon appertaining to a Security.
3
"Debt" of any Person means any debt for money borrowed which is
created, assumed, incurred or guaranteed in any manner by such Person or for
which such Person is otherwise responsible or liable, and shall expressly
include any such guaranty thereof by such Person. For the purpose of computing
the amount of any Funded Debt or other Debt of any Person there shall be
excluded all Debt of such Person for the payment or redemption or satisfaction
of which money or securities (or evidences of such Debt, if permitted under the
terms of the instrument creating such Debt) in the necessary amount shall have
been deposited in trust with the proper depositary, whether upon or prior to the
maturity or the date fixed for redemption of such Debt; and, in any instance
where Debt is so excluded, for the purpose of computing the assets of such
Person there shall be excluded the money, securities or evidences of Debt
deposited by such Person in trust for the purpose of paying or satisfying such
Debt.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of one or more Registered Global Securities, the
Person designated as Depositary by the Issuer pursuant to Section 2.03 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Securities of any
such series shall mean the Depositary with respect to the Registered Global
Securities of that series.
"Dollar" means the coin or currency of the United States of America as
at the time of payment is legal tender for the payment of public and private
debts.
"Event of Default" means any event or condition specified as such in
Section 5.01.
"Exempted Debt" means the sum of the following items outstanding as of
the date Exempted Debt is being determined: (i) Debt of the Issuer and its
Subsidiaries incurred after the date of this Indenture and secured by liens
created, assumed or permitted to exist pursuant to Section 3.06(b) and (ii)
Attributable Debt of the Issuer and its Subsidiaries in respect of all sale and
leaseback transactions entered into pursuant to Section 3.07(b), including
amounts considered to be Attributable Debt pursuant to Section 3.07(a)(iii)(B).
"Foreign Currency" means a currency issued by the government of a
country other than the United States.
"Funded Debt" means all Debt whether incurred, assumed or guaranteed,
including purchase money indebtedness, maturing by its terms more than one year
4
from the date of creation thereof or which is renewable or extendable at the
sole option of the obligor in such manner that it may become payable more than
one year from the date of creation thereof.
"Holder", "holder of Securities", "Securityholder" or other similar
terms mean (a) in the case of any Registered Security, the Person in whose name
such Security is registered in the security register kept by the Issuer for that
purpose in accordance with the terms hereof, and (b) in the case of any
Unregistered Security, the bearer of such Security, or any Coupon appertaining
thereto, as the case may be.
"Indenture" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or supplemented
or both, and shall include the forms and terms of particular series of
Securities established as contemplated hereunder.
"interest" means, when used with respect to non-interest bearing
Securities, interest payable after maturity.
"Issuer" means Texas Instruments Incorporated and, subject to Article
9, its successors and assigns.
"Issuer Order" means a written statement, request or order of the
Issuer signed in its name by the chairman of the Board of Directors, the
president or any vice president of the Issuer.
"Mortgage" has the meaning set forth in Section 3.06.
"Officers' Certificate" means a certificate signed by the chairman of
the Board of Directors or the president or any vice president and by the
treasurer or the secretary or any assistant secretary of the Issuer and
delivered to the Trustee. Each such certificate shall comply with Section 314 of
the Trust Indenture Act of 1939 and shall include the statements provided for in
Section 11.05.
"Opinion of Counsel" means an opinion in writing signed by the general
corporate counsel or such other legal counsel who may be an employee of or
counsel to the Issuer and who shall be satisfactory to the Trustee. Each such
opinion shall comply with Section 314 of the Trust Indenture Act of 1939 and
shall include the statements provided for in Section 11.05, if and to the extent
required hereby.
"original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof)
5
for which such Security was issued (directly or indirectly) on registration of
transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Section 5.01.
"Outstanding", when used with reference to Securities, shall, subject
to the provisions of Section 7.04 mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys or U.S. Government Obligations (as provided for in Section 10.01)
in the necessary amount shall have been deposited in trust with the Trustee or
with any paying agent (other than the Issuer) or shall have been set aside,
segregated and held in trust by the Issuer for the Holders of such Securities
(if the Issuer shall act as its own paying agent); provided, that if such
Securities, or portions thereof, are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as herein provided, or
provision satisfactory to the Trustee shall have been made for giving such
notice; and
(c) Securities in substitution for which other Securities shall have
been authenticated and delivered, or which shall have been paid, pursuant to the
terms of Section 2.09 (except with respect to any such Security as to which
proof satisfactory to the Trustee is presented that such Security is held by a
Person in whose hands such Security is a legal, valid and binding obligation of
the Issuer), Securities converted into Common Stock pursuant hereto and
Securities not deemed outstanding pursuant to Section 13.02.
In determining whether the Holders of the requisite principal amount of
Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the maturity thereof pursuant to Section 5.01.
"Person" means any individual, corporation, partnership, limited
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
6
"principal" whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any".
"Principal Manufacturing Property" means each manufacturing or
processing plant or facility of the Issuer or a Subsidiary located in the United
States of America (other than its territories and possessions) or Puerto Rico;
except any such manufacturing or processing plant or facility which the Board of
Directors by resolution reasonably determines not to be of material importance
to the total business conducted by the Issuer and its consolidated Subsidiaries.
"Registered Global Security", means a Security evidencing all or a part
of a series of Registered Securities, issued to the Depositary for such series
in accordance with Section 2.04, and bearing the legend prescribed in Section
2.04.
"Registered Security" means any Security registered on the Security
register of the Issuer.
"Responsible Officer", when used with respect to the Trustee, means the
chairman of the board of directors, any vice chairman of the board of directors,
the chairman of the trust committee, the chairman of the executive committee,
any vice chairman of the executive committee, the president, any vice president,
the cashier, the secretary, the treasurer, any trust officer, any assistant
trust officer, any assistant vice president, any assistant cashier, any
assistant secretary, any assistant treasurer, or any other officer or assistant
officer of the Trustee customarily performing functions similar to those
performed by the persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means (a) any Subsidiary which owns or is the
lessee of any Principal Manufacturing Property; provided, however, that the term
"Restricted Subsidiary" shall not include (A) any Subsidiary primarily engaged
in the business of purchasing, holding, collecting, servicing and otherwise
dealing in and with installment sales contracts, leases, trust receipts,
mortgages, commercial paper and other financing instruments, and any collateral
or agreements relating thereto, including, without limiting the generality of
the foregoing, financing (whether through long- or short-term borrowings,
pledges, discounts or otherwise) the sales, leasing or other operations of the
Issuer and its Subsidiaries or any of them, and not, except as incidental to
such financing business, engaged in owning, leasing or operating any property
which but for this proviso would qualify as a Principal Manufacturing Property
or (B) any Subsidiary acquired or organized for the purpose of acquiring the
stock or business or assets of any Person other than the Issuer or any
Restricted Subsidiary, whether by merger, consolidation,
7
acquisition of stock or assets or similar transaction, so long as such
Subsidiary does not acquire all or any substantial part of the business or
assets of the Issuer or any other Restricted Subsidiary; and (b) any other
Subsidiary which is hereafter designated by the Board of Directors as a
Restricted Subsidiary.
"Security" or "Securities" has the meaning stated in the first recital
of this Indenture, or, as the case may be, Securities that have been
authenticated and delivered under this Indenture.
"Senior Indebtedness" means the principal of, premium, if any, interest
on, and any other payment due pursuant to any of the following, whether
outstanding at the date hereof or hereafter incurred or created:
(a) all indebtedness of the Issuer for money borrowed (including any
indebtedness secured by a mortgage, conditional sales contract or other lien
which is (i) given to secure all or part of the purchase price of property
subject thereto, whether given to the vendor of such property or to another or
(ii) existing on property at the time of acquisition thereof);
(b) all indebtedness of the Issuer evidenced by notes, debentures,
bonds or other securities sold by the Issuer for money;
(c) all lease obligations of the Issuer which are capitalized on the
books of the Issuer in accordance with generally accepted accounting principles;
(d) all indebtedness of others of the kinds described in either of the
preceding clauses (a) or (b) and all lease obligations of others of the kind
described in the preceding clause (c) assumed by or guaranteed in any manner by
the Issuer or in effect guaranteed by the Issuer through an agreement to
purchase, contingent or otherwise; and
(e) all renewals, extensions or refundings of indebtedness of the
kinds described in any of the preceding clauses (a), (b) and (d) and all
renewals or extensions of lease obligations of the kinds described in either of
the preceding clauses (c) and (d);
unless, in the case of any particular indebtedness, lease, renewal, extension or
refunding, the instrument or lease creating or evidencing the same or the
assumption or guarantee of the same expressly provides that such indebtedness,
lease, renewal, extension or refunding is not superior in right of payment to
the Securities.
8
"Subsidiary" means a corporation of which stock having a majority of
the voting power under ordinary circumstances is owned, directly or indirectly,
by the Issuer or by one or more subsidiaries of the Issuer, or by the Issuer and
one or more subsidiaries of the Issuer.
"Trust Indenture Act of 1939" (except as otherwise provided in Sections
8.01, 8.02 and 14.05) means the Trust Indenture Act of 1939 as in force at the
date as of which this Indenture was originally executed.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article 6, shall also include
any successor trustee. "Trustee" shall also mean or include each Person who is
then a trustee hereunder and if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean the
trustee with respect to the Securities of such series.
"Unregistered Security" means any Security other than a Registered
Security.
"U.S. Government Obligations" shall have the meaning set forth in
Section 10.01(a).
"vice president", when used with respect to the Issuer or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title of "vice president".
"Yield to Maturity" means the yield to maturity on a series of
securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
ARTICLE 2
SECURITIES
SECTION 2.01. Forms Generally. The Securities of each series and the
Coupons, if any, to be attached thereto shall be substantially in such form (not
inconsistent with this Indenture) as shall be established by or pursuant to one
or more Board Resolutions (as set forth in a Board Resolution or, to the extent
established pursuant to rather than set forth in a Board Resolution, an
Officers' Certificate detailing such establishment) or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
9
substitutions and other variations as are required or permitted by this
Indenture and may have imprinted or otherwise reproduced thereon such legend or
legends or endorsements, not inconsistent with the provisions of this Indenture,
as may be required to comply with any law or with any rules or regulations
pursuant thereto, or with any rules of any securities exchange or to conform to
general usage, all as may be determined by the officers executing such
Securities and Coupons, if any, as evidenced by their execution of such
Securities and Coupons.
The definitive Securities and Coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities and
Coupons, if any, as evidenced by their execution of such Securities and Coupons,
if any.
SECTION 2.02. Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
___________________________________,
as Trustee
By__________________________________
Authorized Officer
SECTION 2.03. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to one or more Board Resolutions of the Board of
Directors and set forth in a Board Resolution, or, to the extent established
pursuant to (rather than set forth in) a Board Resolution, in an Officers'
Certificate detailing such establishment and/or established in one or more
indentures supplemental hereto, prior to the initial issuance of Securities of
any series,
(a) the designation of the Securities of the series (which may be part
of a series of Securities previously issued);
10
(b) the terms and conditions, if applicable, upon which conversion of
the Securities into Common Stock will be effected, including the initial
Conversion Price or rate, the conversion period and other provisions in addition
to or in lieu of those described herein;
(c) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of the series pursuant to
Section 2.08, 2.09, 2.11, 8.05, or 13.04);
(d) if other than Dollars, the coin or currency in which the
Securities of that series are denominated (including, but not limited to, any
Foreign Currency or euro);
(e) any date on which the principal of the Securities of the series is
payable;
(f) the rate or rates at which the Securities of the series shall bear
interest, if any, the date or dates from which such interest shall accrue, on
which such interest shall be payable and (in the case of Registered Securities)
on which a record shall be taken for the determination of Holders to whom
interest is payable and/or the method by which such rate or rates or date or
dates shall be determined;
(g) the place or places where the principal of and any interest on
Securities of the series shall be payable (if other than as provided in Section
3.02);
(h) the price or prices at which, the period or periods within which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Issuer, pursuant to any
sinking fund or otherwise;
(i) the obligation, if any, of the Issuer to redeem, purchase or repay
Securities of the series pursuant to any mandatory redemption, sinking fund or
analogous provisions or at the option of a Holder thereof and the price or
prices at which and the period or periods within which and any terms and
conditions upon which Securities of the series shall be redeemed, purchased or
repaid, in whole or in part, pursuant to such obligation;
(j) if other than denominations of $1,000 and any integral multiple
thereof in the case of Registered Securities, or $1,000 and $5,000 in the case
of Unregistered Securities, the denominations in which Securities of the series
shall be issuable;
11
(k) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof;
(l) if other than the coin or currency in which the Securities of that
series are denominated, the coin or currency in which payment of the principal
of or interest on the Securities of such series shall be payable;
(m) if the principal of or interest on the Securities of the series is
to be payable, at the election of the Issuer or a Holder thereof, in a coin or
currency other than that in which the Securities are denominated, the period or
periods within which, and the terms and conditions upon which, such election may
be made;
(n) if the amount of payments of principal of and interest on the
Securities of the series may be determined with reference to an index based on a
coin or currency other than that in which the Securities of the series are
denominated, the manner in which such amounts shall be determined;
(o) whether the Securities of the series will be issuable as
Registered Securities (and if so, whether such Securities will be issuable as
Registered Global Securities) or Unregistered Securities (with or without
Coupons), or any combination of the foregoing, any restrictions applicable to
the offer, sale or delivery of Unregistered Securities or the payment of
interest thereon and, if other than as provided in Section 2.08, the terms upon
which Unregistered Securities of any series may be exchanged for Registered
Securities of such series and vice versa;
(p) whether and under what circumstances the Issuer will pay
additional amounts on the Securities of the series held by a Person who is not a
U.S. Person in respect of any tax, assessment or governmental charge withheld or
deducted and, if so, whether the Issuer will have the option to redeem such
Securities rather than pay such additional amounts;
(q) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security of
such series) only upon receipt of certain certificates or other documents or
satisfaction of other conditions, then the form and terms of such certificates,
documents or conditions;
(r) any trustees, authenticating or paying agents, transfer agents or
registrars or any other agents with respect to the Securities of such series;
12
(s) any other events of default or covenants with respect to the
Securities of such series;
(t) if the Securities of the series may be issued in exchange for
surrendered Securities of another series, or for other securities of the Issuer,
pursuant to the terms of such Securities or securities or of any agreement
entered into by the Issuer, the ratio of the principal amount of the Securities
of the series to be issued to the principal amount of the Securities or
securities to be surrendered in exchange, and any other material terms of the
exchange; and
(u) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
SECTION 2.04. Authentication and Delivery of Securities. The Issuer may
deliver Securities of any series having attached thereto appropriate Coupons, if
any, executed by the Issuer to the Trustee for authentication together with the
applicable documents referred to below in this Section, and the Trustee shall
thereupon authenticate and deliver such Securities to or upon the order of the
Issuer (contained in the Issuer Order referred to below in this Section) or
pursuant to such procedures acceptable to the Trustee and to such recipients as
may be specified from time to time by an Issuer Order. The maturity date,
original issue date, interest rate and any other terms of the Securities of such
series and Coupons, if any, appertaining thereto shall be determined by or
pursuant to such Issuer Order and procedures. If provided for in such
procedures, such Issuer Order may authorize authentication and delivery pursuant
to oral instructions from the Issuer or its duly authorized agent, which
instructions shall be promptly confirmed in writing. In authenticating such
Securities and accepting the additional responsibilities under this Indenture in
relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 6.01) shall be fully protected in relying upon:
(a) an Issuer Order requesting such authentication and setting forth
delivery instructions if the Securities and Coupons, if any, are not to be
delivered to the Issuer;
(b) any Board Resolution, Officers' Certificate and/or executed
supplemental indenture referred to in Sections 2.01 and 2.03 by or pursuant to
which the forms and terms of the Securities and Coupons, if any, were
established;
(c) an Officers' Certificate setting forth the form or forms and terms
of the Securities and Coupons, if any, stating that the form or forms and terms
of the
13
Securities and Coupons, if any, have been established pursuant to Sections 2.01
and 2.03 and comply with this Indenture, and covering such other matters as the
Trustee may reasonably request; and
(d) an Opinion of Counsel to the effect that:
(i) the form or forms and terms of such Securities and Coupons, if
any, have been established pursuant to Sections 2.01 and 2.03 and
comply with this Indenture,
(ii) the authentication and delivery of such Securities and Coupons, if
any, by the Trustee are authorized under the provisions of this
Indenture,
(iii) such Securities and Coupons, if any, when authenticated and
delivered by the Trustee and issued by the Issuer in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute valid and binding obligations of the Issuer, and
(iv) all laws and requirements in respect of the execution and delivery
by the Issuer of the Securities and Coupons, if any, have been complied
with,
and covering such other matters as the Trustee may reasonably request.
The Trustee shall have the right to decline to authenticate and deliver
any Securities under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken by the Issuer or if the
Trustee in good faith by its board of directors or board of trustees, executive
committee, or a trust committee of directors or trustees or Responsible Officers
shall determine that such action would expose the Trustee to personal liability
to existing Holders or would affect the Trustee's own rights, duties or
immunities under the Securities, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.03 that the
Securities of a series are to be issued in the form of one or more Registered
Global Securities, then the Issuer shall execute and the Trustee shall, in
accordance with this Section and the Issuer Order with respect to such series,
authenticate and deliver one or more Registered Global Securities that (i) shall
represent and shall be denominated in an amount equal to the aggregate principal
amount of all of the Securities of such series issued and not yet cancelled,
(ii) shall be registered in the name of the Depositary for such Registered
Global Security or Securities or the nominee of such Depositary, (iii) shall be
delivered by the Trustee to such
14
Depositary or pursuant to such Depositary's instructions and (iv) shall bear a
legend substantially to the following effect: "Unless and until it is exchanged
in whole or in part for Securities in definitive registered form, this Security
may not be transferred except as a whole by the Depositary to the nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
Each Depositary designated pursuant to Section 2.03 must, at the time
of its designation and at all times while it serves as Depositary, be a clearing
agency registered under the Securities Exchange Act of 1934 and any other
applicable statute or regulation.
SECTION 2.05. Execution of Securities. The Securities and, if
applicable, each Coupon appertaining thereto shall be signed on behalf of the
Issuer by the chairman of its Board of Directors or any vice chairman of its
Board of Directors or its president or any vice president or its treasurer,
under its corporate seal (except in the case of Coupons) which may, but need
not, be attested. Such signatures may be the manual or facsimile signatures of
the present or any future such officers. The seal of the Issuer may be in the
form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Securities. Typographical and other minor errors or
defects in any such reproduction of the seal or any such signature shall not
affect the validity or enforceability of any Security that has been duly
authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities or Coupons, if any, shall cease to be such officer before the
Security or Coupon so signed (or the Security to which the Coupon so signed
appertains) shall be authenticated and delivered by the Trustee or disposed of
by the Issuer, such Security or Coupon nevertheless may be authenticated and
delivered or disposed of as though the person who signed such Security or Coupon
had not ceased to be such officer of the Issuer; and any Security or Coupon may
be signed on behalf of the Issuer by such persons as, at the actual date of the
execution of such Security or Coupon, shall be the proper officers of the
Issuer, although at the date of the execution and delivery of this Indenture any
such person was not such an officer.
SECTION 2.06. Certificate of Authentication. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one of
its authorized officers, shall be entitled to the benefits of this Indenture or
be valid or obligatory for any purpose. No Coupon shall be entitled to the
benefits of this Indenture or shall be valid and obligatory for any purpose
until the certificate of authentication
15
on the Security to which such Coupon appertains shall have been duly executed by
the Trustee. The execution of such certificate by the Trustee upon any Security
executed by the Issuer shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered hereunder and that the
Holder is entitled to the benefits of this Indenture.
SECTION 2.07. Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.03 or, with respect to the Registered Securities of
any series, if not so established, in denominations of $1,000 and any integral
multiple thereof. If denominations of Unregistered Securities of any series are
not so established, such Securities shall be issuable in denominations of $1,000
and $5,000. The Securities of each series shall be numbered, lettered or
otherwise distinguished in such manner or in accordance with such plan as the
officers of the Issuer executing the same may determine with the approval of the
Trustee, as evidenced by the execution and authentication thereof. Unless
otherwise indicated in a Board Resolution or supplemental indenture for a
particular series, interest will be calculated on the basis of a 360-day year of
twelve 30-day months.
Each Registered Security shall be dated the date of its authentication.
Each Unregistered Security shall be dated as provided in the resolution or
resolutions of the Board of Directors of the Issuer referred to in Section 2.03.
The Securities of each series shall bear interest, if any, from the date, and
such interest shall be payable on the dates, established as contemplated by
Section 2.03.
The Person in whose name any Registered Security of any series is
registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer, exchange or conversion of such
Registered Security subsequent to the record date and prior to such interest
payment date (subject, in the case of conversion of such Security during such
period, to Section 14.02), except if and to the extent the Issuer shall default
in the payment of the interest due on such interest payment date for such
series, in which case such defaulted interest shall be paid to the Persons in
whose names Outstanding Registered Securities for such series are registered at
the close of business on a subsequent record date (which shall be not less than
five Business Days prior to the date of payment of such defaulted interest)
established by notice given by mail by or on behalf of the Issuer to the Holders
of Registered Securities not less than 15 days preceding such subsequent record
date. The term "record date" as used with respect to any interest payment date
(except a date for payment of defaulted interest) for the Securities of any
series shall mean the date specified as such in the terms of the
16
Registered Securities of such series established as contemplated by Section
2.03, or, if no such date is so established, if such interest payment date is
the first day of a calendar month, the 15th day of the next preceding calendar
month or, if such interest payment date is the 15th day of a calendar month, the
first day of such calendar month, whether or not such record date is a Business
Day.
SECTION 2.08. Registration, Transfer and Exchange. The Issuer will keep
at each office or agency to be maintained for the purpose as provided in Section
3.02 for each series of Securities a register or registers in which, subject to
such reasonable regulations as it may prescribe, it will provide for the
registration of Securities of such series and the registration of transfer of
Registered Securities of such series. Such register shall be in written form in
the English language or in any other form capable of being converted into such
form within a reasonable time. At all reasonable times such register or
registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any Registered
Security of any series at any such office or agency to be maintained for the
purpose as provided in Section 3.02, the Issuer shall execute and the Trustee
shall authenticate and deliver in the name of the transferee or transferees a
new Registered Security or Registered Securities of the same series, maturity
date, interest rate and original issue date in authorized denominations for a
like aggregate principal amount.
Unregistered Securities (except for any temporary Unregistered
Securities) and Coupons (except for Coupons attached to any temporary
Unregistered Securities) shall be transferable by delivery.
At the option of the Holder thereof, Registered Securities of any
series (except a Registered Global Security) may be exchanged for a Registered
Security or Registered Securities of such series having authorized denominations
and an equal aggregate principal amount, upon surrender of such Registered
Securities to be exchanged at the agency of the Issuer that shall be maintained
for such purpose in accordance with Section 3.02 and upon payment, if the Issuer
shall so require, of the charges hereinafter provided. If the Securities of any
series are issued in both registered and unregistered form, except as otherwise
specified pursuant to Section 2.03, at the option of the Holder thereof,
Unregistered Securities of any series may be exchanged for Registered Securities
of such series having authorized denominations and an equal aggregate principal
amount, upon surrender of such Unregistered Securities to be exchanged at the
agency of the Issuer that shall be maintained for such purpose in accordance
with Section 3.02, with, in the case of Unregistered Securities that have
Coupons attached, all unmatured Coupons and all matured Coupons in default
thereto appertaining, and
17
upon payment, if the Issuer shall so require, of the charges hereinafter
provided. At the option of the Holder thereof, if Unregistered Securities of any
series, maturity date, interest rate and original issue date are issued in more
than one authorized denomination, except as otherwise specified pursuant to
Section 2.03, such Unregistered Securities may be exchanged for Unregistered
Securities of such series having authorized denominations and an equal aggregate
principal amount, upon surrender of such Unregistered Securities to be exchanged
at the agency of the Issuer that shall be maintained for such purpose in
accordance with Section 3.02 or as specified pursuant to Section 2.03, with, in
the case of Unregistered Securities that have Coupons attached, all unmatured
Coupons and all matured Coupons in default thereto appertaining, and upon
payment, if the Issuer shall so require, of the charges hereinafter provided.
Unless otherwise specified pursuant to Section 2.03, Registered Securities of
any series may not be exchanged for Unregistered Securities of such series.
Whenever any Securities are so surrendered for exchange, the Issuer shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive. All Securities and
Coupons surrendered upon any exchange or transfer provided for in this Indenture
shall be promptly cancelled and disposed of by the Trustee and the Trustee will
deliver a certificate of disposition thereof to the Issuer.
All Registered Securities presented for registration of transfer,
exchange, redemption or payment shall (if so required by the Issuer or the
Trustee) be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Issuer and the Trustee duly
executed by, the Holder or his or her attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any stamp
or other tax or other governmental charge that may be imposed in connection with
any exchange or registration of transfer of Securities. No service charge shall
be made for any such transaction.
The Issuer shall not be required to exchange or register a transfer of
(a) any Securities of any series for a period of 15 days next preceding the
first mailing of notice of redemption of Securities of such series to be
redeemed or (b) any Securities selected, called or being called for redemption,
in whole or in part, except, in the case of any Security to be redeemed in part,
the portion thereof not so to be redeemed.
Notwithstanding any other provision of this Section 2.08, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security representing all or a portion of
the Securities of a series may not be transferred except as a whole by the
Depositary for such series
18
to a nominee of such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or by such Depositary or any
such nominee to a successor Depositary for such series or a nominee of such
successor Depositary.
If at any time the Depositary for the Registered Securities of a series
notifies the Issuer that it is unwilling or unable to continue as Depositary for
the Registered Securities of such series or if at any time the Depositary for
the Registered Securities of a series shall no longer be eligible under Section
2.04, the Issuer shall appoint a successor Depositary with respect to the
Registered Securities of such series. If a successor Depositary for the
Registered Securities of such series is not appointed by the Issuer within 90
days after the Issuer receives such notice or becomes aware of such
ineligibility, the Issuer's election pursuant to Section 2.03 that the
Registered Securities of such series be represented by a Registered Global
Security shall no longer be effective and the Issuer will execute, and the
Trustee, upon receipt of an Officer's Certificate for the authentication and
delivery of definitive Securities of such series, will authenticate and deliver,
Securities of such series in definitive registered form without Coupons, in any
authorized denominations, in an aggregate principal amount equal to the
principal amount of the Registered Global Security or Securities representing
the Registered Securities of such series, in exchange for such Registered Global
Security or Securities.
The Issuer may at any time and in its sole discretion determine that
the Registered Securities of any series issued in the form of one or more
Registered Global Securities shall no longer be represented by a Registered
Global Security or Securities. In such event the Issuer will execute, and the
Trustee, upon receipt of an Officer's Certificate for the authentication and
delivery of definitive Securities of such series, will authenticate and deliver,
Securities of such series in definitive registered form without Coupons, in any
authorized denominations, in an aggregate principal amount equal to the
principal amount of the Registered Global Security or Securities representing
such series, in exchange for such Registered Global Security or Securities.
If specified by the Issuer pursuant to Section 2.03 with respect to
Securities represented by a Registered Global Security, the Depositary for such
Registered Global Security may surrender such Registered Global Security in
exchange in whole or in part for Securities of the same series in definitive
registered form on such terms as are acceptable to the Issuer and such
Depositary. Thereupon, the Issuer shall execute, and the Trustee shall
authenticate and deliver, without service charge,
19
(a) to the Person specified by such Depositary a new Registered
Security or Securities of the same series, of any authorized denominations as
requested by such Person, in an aggregate principal amount equal to and in
exchange for such Person's beneficial interest in the Registered Global
Security; and
(b) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal amount of
the surrendered Registered Global Security and the aggregate principal amount of
Registered Securities authenticated and delivered pursuant to clause (a) above.
Upon the exchange of a Registered Global Security for Securities in
definitive registered form without Coupons, in authorized denominations, such
Registered Global Security shall be cancelled by the Trustee. Securities in
definitive registered form without Coupons issued in exchange for a Registered
Global Security pursuant to this Section 2.08 shall be registered in such names
and in such authorized denominations as the Depositary for such Registered
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver
such Securities to or as directed by the Persons in whose names such Securities
are so registered.
All Securities issued upon any transfer or exchange of Securities shall
be valid obligations of the Issuer, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
Notwithstanding anything herein or in the terms of any series of
Securities to the contrary, neither the Issuer nor the Trustee (which shall rely
on an Officers' Certificate and an Opinion of Counsel) shall be required to
exchange any Unregistered Security for a Registered Security if such exchange
would result in adverse Federal income tax consequences to the Issuer (such as,
for example, the inability of the Issuer to deduct from its income, as computed
for Federal income tax purposes, the interest payable on the Unregistered
Securities) under then applicable United States Federal income tax laws.
SECTION 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security or any Coupon
appertaining to any Security shall become mutilated, defaced or be destroyed,
lost or stolen, the Issuer in its discretion may execute, and upon the written
request of any officer of the Issuer, the Trustee shall authenticate and deliver
a new Security of the same series, maturity date, interest rate and original
issue date, bearing a number or other distinguishing symbol not
contemporaneously outstanding, in exchange and substitution for the mutilated or
defaced Security, or in lieu of and substitution for the Security so destroyed,
lost or stolen with Coupons corresponding to the
20
Coupons appertaining to the Securities so mutilated, defaced, destroyed, lost or
stolen, or in exchange or substitution for the Security to which such mutilated,
defaced, destroyed, lost or stolen Coupon appertained, with Coupons appertaining
thereto corresponding to the Coupons so mutilated, defaced, destroyed, lost or
stolen. In every case the applicant for a substitute Security or Coupon shall
furnish to the Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as may be required by them to indemnify and
defend and to save each of them harmless and, in every case of destruction, loss
or theft, evidence to their satisfaction of the destruction, loss or theft of
such Security or Coupon and of the ownership thereof and in the case of
mutilation or defacement shall surrender the Security and related Coupons to the
Trustee.
Upon the issuance of any substitute Security or Coupon, the Issuer may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith. In case any Security
or Coupon which has matured or is about to mature or has been called for
redemption in full, or is being surrendered for conversion in full, shall become
mutilated or defaced or be destroyed, lost or stolen, the Issuer may, instead of
issuing a substitute Security (with the Holder's consent, in the case of
convertible Securities), pay or authorize the payment of the same or the
relevant Coupon or convert, or authorize conversion of the same (without
surrender thereof except in the case of a mutilated or defaced Security or
Coupon), if the applicant for such payment shall furnish to the Issuer and to
the Trustee and any agent of the Issuer or the Trustee such security or
indemnity as any of them may require to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Issuer and the Trustee and any agent of the Issuer or the Trustee evidence
to their satisfaction of the destruction, loss or theft of such Security or
Coupon and of the ownership thereof.
Every substitute Security or Coupon of any series issued pursuant to
the provisions of this Section by virtue of the fact that any such Security or
Coupon is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Issuer, whether or not the destroyed, lost or stolen Security
or Coupon shall be at any time enforceable by anyone and shall be entitled to
all the benefits of (but shall be subject to all the limitations of rights set
forth in) this Indenture equally and proportionately with any and all other
Securities or Coupons of such series duly authenticated and delivered hereunder.
All Securities and Coupons shall be held and owned upon the express condition
that, to the extent permitted by law, the foregoing provisions are exclusive
with respect to the replacement or payment or conversion of mutilated, defaced
or destroyed, lost or stolen Securities and Coupons and shall preclude any and
all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the
21
replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.10. Cancellation of Securities; Destruction Thereof. All
Securities and Coupons surrendered for exchange for Securities of the same
series or for payment, redemption, registration of transfer, conversion or for
credit against any payment in respect of a sinking or analogous fund, if
surrendered to the Issuer or any agent of the Issuer or the Trustee, shall be
delivered to the Trustee for cancellation or, if surrendered to the Trustee,
shall be cancelled by it; and no Securities or Coupons shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee shall dispose of cancelled Securities and Coupons held by
it and deliver a certificate of disposition to the Issuer. If the Issuer shall
acquire any of the Securities or Coupons, such acquisition shall not operate as
a redemption or satisfaction of the Debt represented by such Securities or
Coupons unless and until the same are delivered to the Trustee for cancellation.
SECTION 2.11. Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as Registered Securities without Coupons, or as Unregistered Securities
with or without Coupons attached thereto, of any authorized denomination, and
substantially in the form of the definitive Securities of such series but with
such omissions, insertions and variations as may be appropriate for temporary
Registered Securities, all as may be determined by the Issuer with the
concurrence of the Trustee as evidenced by the execution and authentication
thereof. Temporary Securities may contain such reference to any provisions of
this Indenture as may be appropriate. Every temporary Security shall be executed
by the Issuer and be authenticated by the Trustee upon the same conditions and
in substantially the same manner, and with like effect, as the definitive
Securities. Without unreasonable delay the Issuer shall execute and shall
furnish definitive Securities of such series and thereupon temporary Registered
Securities of such series may be surrendered in exchange therefor without charge
at each office or agency to be maintained by the Issuer for that purpose
pursuant to Section 3.02 and, in the case of Unregistered Securities, at any
agency maintained by the Issuer for such purpose as specified pursuant to
Section 2.03, and the Trustee shall authenticate and deliver in exchange for
such temporary Securities of such series an equal aggregate principal amount of
definitive Securities of the same series having authorized denominations and, in
the case of Unregistered Securities, having attached thereto any appropriate
Coupons. Until so exchanged, the temporary Securities of any series shall be
entitled to the same benefits under this
22
Indenture as definitive Securities of such series, unless the benefits of the
temporary Securities are limited pursuant to Section 2.03. The provisions of
this Section are subject to any restrictions or limitations on the issue and
delivery of temporary Unregistered Securities of any series that may be
established pursuant to Section 2.03 (including any provision that Unregistered
Securities of such series initially be issued in the form of a single global
Unregistered Security to be delivered to a depositary or agency located outside
the United States and the procedures pursuant to which definitive or global
Unregistered Securities of such series would be issued in exchange for such
temporary global Unregistered Security).
ARTICLE 3
COVENANTS OF THE ISSUER
SECTION 3.01. Payment of Principal and Interest. The Issuer covenants
and agrees for the benefit of each series of Securities that it will duly and
punctually pay or cause to be paid the principal of, and interest on, each of
the Securities of such series (together with any additional amounts payable
pursuant to the terms of such Securities) at the place or places, at the
respective times and in the manner provided in such Securities and in the
Coupons, if any, appertaining thereto and in this Indenture. The interest on
Securities with Coupons attached (together with any additional amounts payable
pursuant to the terms of such Securities) shall be payable only upon
presentation and surrender of the several Coupons for such interest installments
as are evidenced thereby as they severally mature. If any temporary Unregistered
Security provides that interest thereon may be paid while such Security is in
temporary form, the interest on any such temporary Unregistered Security
(together with any additional amounts payable pursuant to the terms of such
Security) shall be paid, as to the installments of interest evidenced by Coupons
attached thereto, if any, only upon presentation and surrender thereof, and, as
to the other installments of interest, if any, only upon presentation of such
Securities for notation thereon of the payment of such interest, in each case
subject to any restrictions that may be established pursuant to Section 2.03.
The interest on Registered Securities (together with any additional amounts
payable pursuant to the terms of such Securities) shall be payable only to or
upon the written order of the Holders thereof and at the option of the Issuer
may be paid by mailing checks for such interest payable to or upon the written
order of such Holders at their last addresses as they appear on the registry
books of the Issuer.
SECTION 3.02. Offices for Payments, Etc. The Issuer will maintain (a)
in the Borough of Manhattan, The City of New York, an agency where the
23
Registered Securities of each series may be presented for payment, an agency
where the Securities of each series may be presented for exchange and
conversion, if applicable, as is provided in this Indenture and, if applicable,
pursuant to Section 2.03 and an agency where the Registered Securities of each
series may be presented for registration of transfer as in this Indenture
provided and (b) such further agencies in such places as may be determined for
the Securities of such series pursuant to Section 2.03.
The Issuer will maintain one or more agencies in a city or cities
located outside the United States (including any city in which such an agency is
required to be maintained under the rules of any stock exchange on which the
Securities of such series are listed) where the Unregistered Securities, if any,
of each series and Coupons, if any, appertaining thereto may be presented for
payment. No payment on any Unregistered Security or Coupon will be made upon
presentation of such Unregistered Security or Coupon at an agency of the Issuer
within the United States nor will any payment be made by transfer to an account
in, or by mail to an address in, the United States unless pursuant to applicable
United States laws and regulations then in effect such payment can be made
without adverse tax consequences to the Issuer. Notwithstanding the foregoing,
payments in Dollars of Unregistered Securities of any series and Coupons
appertaining thereto which are payable in Dollars may be made at an agency of
the Issuer maintained in the Borough of Manhattan, The City of New York, if such
payment in Dollars at each agency maintained by the Issuer outside the United
States for payment on such Unregistered Securities is illegal or effectively
precluded by exchange controls or other similar restrictions.
The Issuer will maintain in the Borough of Manhattan, The City of New
York, an agency where notices and demands to or upon the Issuer in respect of
the Securities of any series, the Coupons appertaining thereto or this Indenture
may be served.
The Issuer will give to the Trustee written notice of the location of
each such agency and of any change of location thereof. In case the Issuer shall
fail to maintain any agency required by this Section to be located in the
Borough of Manhattan, The City of New York, or shall fail to give such notice of
the location or of any change in the location of any of the above agencies,
presentations and demands may be made and notices may be served at the Corporate
Trust Office of the Trustee.
The Issuer may from time to time designate one or more additional
agencies where the Securities of a series and any Coupons appertaining thereto
may be presented for payment, where the Securities of that series may be
presented for exchange or conversion, if applicable, as provided in this
Indenture
24
and pursuant to Section 2.03 and where the Registered Securities of that series
may be presented for registration of transfer as in this Indenture provided, and
the Issuer may from time to time rescind any such designation, as the Issuer may
deem desirable or expedient; provided, however, that no such designation or
rescission shall in any manner relieve the Issuer of its obligation to maintain
the agencies provided for in this Section. The Issuer will give to the Trustee
prompt written notice of any such designation or rescission thereof.
SECTION 3.03. Appointment to Fill a Vacancy in Office of Trustee. The
Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 6.10, a Trustee, so that there
shall at all times be a Trustee with respect to each series of Securities
hereunder.
SECTION 3.04. Paying Agents. Whenever the Issuer shall appoint a paying
agent other than the Trustee with respect to the Securities of any series, it
will cause such paying agent to execute and deliver to the Trustee an instrument
in which such agent shall agree with the Trustee, subject to the provisions of
this Section,
(a) that it will hold all sums received by it as such agent for the
payment of the principal of or interest on the Securities of such series
(whether such sums have been paid to it by the Issuer or by any other obligor on
the Securities of such series) in trust for the benefit of the Holders of the
Securities of such series, or Coupons appertaining thereto, if any, or of the
Trustee,
(b) that it will give the Trustee notice of any failure by the Issuer
(or by any other obligor on the Securities of such series) to make any payment
of the principal of or interest on the Securities of such series when the same
shall be due and payable, and
(c) that at any time during the continuance of any such failure, upon
the written request of the Trustee, it will forthwith pay to the Trustee all
sums so held in trust by such paying agent.
The Issuer will, on or prior to each due date of the principal of or
interest on the Securities of such series, deposit with the paying agent a sum
sufficient to pay such principal or interest so becoming due, and (unless such
paying agent is the Trustee) the Issuer will promptly notify the Trustee of any
failure to take such action.
If the Issuer shall act as its own paying agent with respect to the
Securities of any series, it will, on or before each due date of the principal
of or interest on the Securities of such series, set aside, segregate and hold
in trust for the benefit
25
of the Holders of the Securities of such series or the Coupons appertaining
thereto a sum sufficient to pay such principal or interest so becoming due. The
Issuer will promptly notify the Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding, but subject
to Section 10.01, the Issuer may at any time, for the purpose of obtaining a
satisfaction and discharge with respect to one or more or all series of
Securities hereunder, or for any other reason, pay or cause to be paid to the
Trustee all sums held in trust for any such series by the Issuer or any paying
agent hereunder, as required by this Section, such sums to be held by the
Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the agreement
to hold sums in trust as provided in this Section is subject to the provisions
of Sections 10.03 and 10.04.
SECTION 3.05. Written Statement to Trustee. So long as any Securities
are Outstanding, the Issuer will deliver to the Trustee on or before July 15 in
each year (beginning in 1999) a written statement covering the previous calendar
year, signed by two of its officers (which need not comply with Section 11.05),
stating that in the course of the performance of their duties as officers of the
Issuer they would normally have knowledge of any default by the Issuer in the
performance or fulfillment of any covenant, agreement or condition contained in
this Indenture, stating whether or not they have knowledge of any such default
and, if so, specifying each such default of which the signers have knowledge and
the nature thereof.
SECTION 3.06. Limitation on Liens. The following provisions shall apply
to the Securities of each series unless specifically otherwise provided in a
Board Resolution, Officers' Certificate or indenture supplemental hereto as
provided pursuant to Section 2.03.
(a) The Issuer will not issue or assume, and will not permit any
Restricted Subsidiary to issue or assume, any Debt secured by any mortgage,
pledge, lien or other encumbrance (mortgages, pledges, liens and other
encumbrances being hereinafter called "Mortgage" or "Mortgages") upon any
Principal Manufacturing Property, or shares of capital stock or Debt of any
Restricted Subsidiary (whether such Principal Manufacturing Property, shares of
stock or Debt is now owned or hereafter acquired) without in any such case
effectively providing, concurrently with the issuance or assumption of such
Debt, that the Securities (together with, if the Issuer shall so determine, any
other Debt of the Issuer or such Restricted Subsidiary ranking equally with the
Securities and
26
then existing or thereafter created) shall be secured equally and ratably with
such Debt; provided, that the foregoing restrictions shall not apply to:
(i) Mortgages on any Principal Manufacturing Property hereafter
acquired by the Issuer or a Restricted Subsidiary prior to, at the
time of, or within 120 days after the latest of the acquisition,
completion of construction (including any improvements on an existing
property) or commencement of commercial operation of such property, to
secure or provide for the payment or financing of all or any part of
the purchase price thereof or construction of fixed improvements
thereon, or, in addition to assumptions in transactions contemplated
by subparagraph (ii) below, the assumption of any Mortgage upon any
such property hereafter acquired existing at the time of such
acquisition, or the acquisition of any such property subject to any
Mortgage without the assumption thereof; provided, that the aggregate
principal amount of Debt secured by any such Mortgage so issued,
assumed or existing shall not exceed 100% of the cost of such
Principal Manufacturing Property to the corporation acquiring the same
or of the fair value thereof (as determined by resolution adopted by
the Board of Directors) at the time of such acquisition, whichever is
less, and provided, further, that in the case of any such acquisition,
construction or improvement the Mortgage shall not apply to any
property theretofore owned by the Issuer or a Restricted Subsidiary,
other than, in the case of any such construction or improvement, any
theretofore unimproved real property on which the property so
constructed, or the improvement, is located;
(ii) the assumption of any Mortgage on any Principal
Manufacturing Property of a corporation which is merged into or
consolidated with the Issuer or a Restricted Subsidiary or
substantially all the assets of which are acquired by the Issuer or a
Restricted Subsidiary;
(iii) Mortgages on any Principal Manufacturing Property of the
Issuer or a Restricted Subsidiary in favor of the United States of
America or any State thereof, or any department, agency or
instrumentality or political subdivision of the United States of
America or any State thereof, or in favor of any other country, or any
political subdivision thereof, to secure partial, progress, advance or
other payments pursuant to any contract or statute or to secure any
Debt incurred or guaranteed for the purpose of financing all or any
part of the cost of acquiring, constructing or improving the property
subject to such Mortgages (including Mortgages incurred in connection
with pollution control, industrial revenue, Title XI maritime
financings or similar financings);
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(iv) any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part, of any
Mortgage referred to in the foregoing clauses (i) through (iii);
provided, however, that the principal amount of Debt so secured
thereby shall not exceed the principal amount of Debt so secured at
the time of such extension, renewal or replacement, and that such
extension, renewal or replacement shall be limited to all or a part of
the property which secured the Mortgage so extended, renewed or
replaced (plus improvements and construction on such property); and
(v) Mortgages securing Debt of a Restricted Subsidiary owing to
the Issuer or another Restricted Subsidiary.
(b) Notwithstanding the provisions of subsection (a) of this Section
3.06, the Issuer or any one or more Subsidiaries may issue or assume Debt
secured by a Mortgage in addition to those permitted by subsection (a) of this
Section 3.06 and renew, extend or replace such Mortgages; provided, that at the
time of such creation, assumption, renewal, extension or replacement, and after
giving effect thereto, Exempted Debt does not exceed 5% of Consolidated Net
Tangible Assets.
SECTION 3.07. Limitation on Sale and Leaseback. The following
provisions shall apply to the Securities of each series unless specifically
otherwise provided in a Board Resolution, Officers' Certificate or indenture
supplemental hereto provided pursuant to Section 2.03.
(a) The Issuer will not, nor will it permit any Restricted Subsidiary
to, enter into any arrangement with any Person providing for the leasing by the
Issuer or any Restricted Subsidiary of any Principal Manufacturing Property,
whether such Principal Manufacturing Property is now owned or hereafter
acquired, except for temporary leases for a term, including renewals at the
option of the lessee, of not more than three years and except for leases between
the Issuer and a Restricted Subsidiary or between Restricted Subsidiaries, which
property has been or is to be sold or transferred by the Issuer or such
Restricted Subsidiary to such Person with the intention of taking back a lease
of such property (a "sale and leaseback transaction") unless the proceeds of
such sale or transfer shall be at least equal to the fair value of such property
as determined by resolution adopted by the Board of Directors and either:
(i) the Issuer or such Restricted Subsidiary would be entitled,
pursuant to the provisions of Section 3.06, to issue or assume Debt
secured by a Mortgage on such property at least equal in amount to the
Attributable Debt in respect of such sale and leaseback transaction
without equally and ratably securing the Securities; provided, however,
that from
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and after the date on which such sale and leaseback transaction becomes
effective the Attributable Debt in respect of such arrangement shall be
deemed for all purposes under Section 3.06 and this Section 3.07 to be
Debt subject to the provisions of Section 3.06; or
(ii) within a period commencing 12 months prior to the
consummation of such sale and leaseback transaction and ending 12
months after the consummation of such sale and leaseback transaction,
the Issuer or Restricted Subsidiary, as the case may be, has expended,
or will expend, for Principal Manufacturing Property an amount equal
to (A) the proceeds of such sale and leaseback transaction and the
Issuer elects to designate such amount as a credit against such sale
and leaseback transaction or (B) a part of the proceeds of such sale
and leaseback transaction and the Issuer elects to designate such
amount as a credit against such sale and leaseback transaction and
treats an amount equal to the remainder of the proceeds as provided in
clause (iii) hereof; or
(iii) such sale or transfer does not come within the exceptions
provided by clause (i) hereof and the Issuer does not make the
election permitted by clause (ii) hereof or makes such election only
as to part of such proceeds, in either of which events the Issuer will
(A) within 120 days after such sale and leaseback transaction, apply
an amount equal to the Attributable Debt in respect of such sale and
leaseback transaction (less an amount equal to the amount, if any,
elected under clause (ii) hereof) to the retirement (other than any
mandatory retirement or by way of payment at maturity) of Funded Debt
of the Issuer or any Restricted Subsidiary, or (B) consider an amount
equal to the Attributable Debt in respect of such sale and leaseback
transaction (less an amount equal to the amount, if any, elected under
clause (ii) hereof) to be Attributable Debt for purposes of the
calculation of Exempted Debt; provided, that, after giving effect
thereto, Exempted Debt does not exceed 5% of Consolidated Net Tangible
Assets.
For the purpose of this Section 3.07 the term "Attributable Debt" shall
mean, at the time of determination, the present value (discounted at the
interest rate implicit in the lease or, if it is not practicable to determine
such rate, then at the Issuer's incremental borrowing rate determined in
accordance with generally accepted accounting principles) of the obligation of
the lessee for net rental payments during the remaining term of any lease
included in the sale and leaseback transaction (including any period for which
such lease has been extended or may, at the option of the lessor, be extended).
The term "net rental payments" under any lease for any period shall mean the sum
of the rental and other payments required to be paid by such lessee thereunder,
not including,
29
however, amounts payable by the lessee for maintenance and repairs, insurance,
taxes, assessments and similar charges and for contingent rents (such as those
based on sales).
(b) Notwithstanding the provisions of paragraph (a) of this Section
3.07, the Issuer and any Restricted Subsidiary may enter into sale and leaseback
transactions in addition to those permitted by paragraph (a) of this Section
3.07 and without any obligation to make expenditures for Principal Manufacturing
Property or to retire any Debt; provided, that at the time of entering into such
sale and leaseback transactions and after giving effect thereto, Exempted Debt
does not exceed 5% of Consolidated Net Tangible Assets.
SECTION 3.08. Luxembourg Publications. In the event of the publication
of any notice pursuant to Section 5.11, 6.10(a), 6.11, 8.02, 10.04, 13.02 or
13.06, the party making such publication in the Borough of Manhattan, The City
of New York, and London shall also, to the extent that notice is required to be
given to Holders of Securities of any series by applicable Luxembourg law or
stock exchange regulation, as evidenced by an Officers' Certificate delivered to
such party, make a similar publication in Luxembourg.
ARTICLE 4
SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE
SECTION 4.01. Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders. The Issuer covenants and agrees that it will
furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the Holders of the
Securities of each series pursuant to Section 312 of the Trust Indenture Act of
1939:
(a) semiannually and not more than 15 days after each record date for
the payment of interest on such Registered Securities, as hereinabove specified,
as of such record date and on dates to be determined pursuant to Section 2.03
for non-interest bearing Registered Securities in each year, and
(b) at such other times as the Trustee may request in writing, within
30 days after receipt by the Issuer of any such request as of a date not more
than 15 days prior to the time such information is furnished, provided, that, if
and so long as the Trustee shall be the Security registrar for such series and
all of the Securities of any series are Registered Securities, such list shall
not be required to be furnished.
30
SECTION 4.02. Reports by the Issuer. The Issuer covenants to file with
the Trustee, within 15 days after the Issuer is required to file the same with
the Commission, copies of the annual reports and of the information, documents,
and other reports which the Issuer may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934.
SECTION 4.03. Reports by the Trustee. Any Trustee's report required
under Section 313(a) of the Trust Indenture Act of 1939 shall be transmitted on
or before July 15 in each year following the date hereof, so long as any
Securities are Outstanding hereunder, and shall be dated as of a date convenient
to the Trustee but no more than 60 nor less than 45 days prior thereto.
ARTICLE 5
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 5.01. Event of Default Defined; Acceleration of Maturity;
Waiver of Default. "Event of Default", with respect to Securities of any series
wherever used herein, means each one of the following events which shall have
occurred and be continuing (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) default in the payment of any installment of interest upon any of
the Securities of such series as and when the same shall become due and payable,
and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal on any
of the Securities of such series as and when the same shall become due and
payable either at maturity, upon redemption, by declaration or otherwise; or
(c) default in the performance, or breach, of any covenant or warranty
of the Issuer in respect of the Securities of such series (other than a covenant
or warranty in respect of the Securities of such series a default in the
performance or breach of which is elsewhere in this Section specifically dealt
with), and continuance of such default or breach for a period of 90 days after
there has been given, by registered or certified mail, to the Issuer by the
Trustee or to the Issuer and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of all series affected thereby, a
written notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; or
31
(d) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Issuer in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of the Issuer or for any substantial part of
its property or ordering the winding up or liquidation of its affairs, and such
decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or
(e) the Issuer shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consent to the entry of an order for relief in an involuntary case under any
such law, or consent to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee or sequestrator (or similar official)
of the Issuer or for any substantial part of its property, or make any general
assignment for the benefit of creditors; or
(f) default by the Issuer in the conversion of any Security in
accordance herewith and continuance of such default for a period of 45 days; or
(g) any other Event of Default provided in the supplemental indenture
or resolution of the Board of Directors under which such series of Securities is
issued or in the form of Security for such series.
If an Event of Default described in clauses (a), (b), (c), (f) or (g)
(if the Event of Default under clause (c) or (g) is with respect to less than
all series of Securities then Outstanding) occurs and is continuing, then, and
in each and every such case, unless the principal of all of the Securities of
such series shall have already become due and payable, either the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Securities of
such series then Outstanding hereunder (each such series voting as a separate
class) by notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if the Securities of
such series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such series) of all
Securities of such series and the interest accrued thereon, if any, to be due
and payable immediately, and upon any such declaration the same shall become
immediately due and payable. If an Event of Default described in clause (c) or
(g) (if the Event of Default under clause (c) or (g) is with respect to all
series of Securities then Outstanding), (d) or (e) occurs and is continuing,
then and in each and every such case, unless the principal of all the Securities
shall have already become due and payable, either the Trustee or the Holders of
not less than 25% in aggregate principal amount of all the Securities then
Outstanding hereunder (treated as one class), by notice in writing to the Issuer
(and to the
32
Trustee if given by Securityholders), may declare the entire principal (or, if
any Securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof) of all the Securities then
Outstanding and interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately due
and payable.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal (or, if the Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in the
terms thereof) of the Securities of any series (or of all the Securities, as the
case may be) shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained or
entered as hereinafter provided, the Issuer shall pay or shall deposit with the
Trustee a sum sufficient to pay all matured installments of interest upon all
the Securities of such series (or of all the Securities, as the case may be) and
the principal of any and all Securities of such series (or of all the
Securities, as the case may be) which shall have become due otherwise than by
acceleration (with interest upon such principal and, to the extent that payment
of such interest is enforceable under applicable law, on overdue installments of
interest, at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the Securities of such
series, (or at the respective rates of interest or Yields to Maturity of all the
Securities, as the case may be) to the date of such payment or deposit) and such
amount as shall be sufficient to cover reasonable compensation to the Trustee,
its agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee except as a result of negligence
or bad faith, and if any and all Events of Default under the Indenture, other
than the non-payment of the principal of Securities which shall have become due
by acceleration, shall have been cured, waived or otherwise remedied as provided
herein--then and in every such case the Holders of a majority in aggregate
principal amount of all the Securities of such series, each series voting as a
separate class, (or of all the Securities, as the case may be, voting as a
single class) then Outstanding, by written notice to the Issuer and to the
Trustee, may waive all defaults with respect to such series (or with respect to
all the Securities, as the case may be) and rescind and annul such declaration
and its consequences, but no such waiver or rescission and annulment shall
extend to or shall affect any subsequent default or shall impair any right
consequent thereon.
For all purposes under this Indenture, if a portion of the principal of
any Original Issue Discount Securities shall have been accelerated and declared
due and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and
33
payable as a result of such acceleration, and payment of such portion of the
principal thereof as shall be due and payable as a result of such acceleration,
together with interest, if any, thereon and all other amounts owing thereunder,
shall constitute payment in full of such Original Issue Discount Securities.
SECTION 5.02. Collection of Debt by Trustee; Trustee May Prove Debt.
The Issuer covenants that (a) in case default shall be made in the payment of
any installment of interest on any of the Securities of any series when such
interest shall have become due and payable, and such default shall have
continued for a period of 30 days or (b) in case default shall be made in the
payment of all or any part of the principal of any of the Securities of any
series when the same shall have become due and payable, whether upon maturity of
the Securities of such series or upon any redemption or by declaration or
otherwise--then, upon demand of the Trustee, the Issuer will pay to the Trustee
for the benefit of the Holders of the Securities of such series the whole amount
that then shall have become due and payable on all Securities of such series,
and such Coupons, for principal or interest, as the case may be (with interest
to the date of such payment upon the overdue principal and, to the extent that
payment of such interest is enforceable under applicable law, on overdue
installments of interest at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in the
Securities of such series); and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including
reasonable compensation to the Trustee and each predecessor trustee, their
respective agents, attorneys and counsel, and any expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor trustee
except as a result of its negligence or bad faith.
In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or other obligor upon such
Securities and collect in the manner provided by law out of the property of the
Issuer or other obligor upon such Securities, wherever situated, the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Issuer or
any other obligor upon the Securities under Title 11 of the United States Code
or any other applicable Federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor or its
property, or in case of any
34
other comparable judicial proceedings relative to the Issuer or other obligor
upon the Securities of any series, or to the creditors or property of the Issuer
or such other obligor, the Trustee, irrespective of whether the principal of any
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section, shall be entitled and empowered, by
intervention in such proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount of
principal and interest (or, if the Securities of any series are
Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) owing and
unpaid in respect of the Securities of any series, and to file such
other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for reasonable
compensation to the Trustee and each predecessor trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all
expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor trustee, except as a result of negligence
or bad faith) and of the Securityholders allowed in any judicial
proceedings relative to the Issuer or other obligor upon the
Securities of any series, or to the creditors or property of the
Issuer or such other obligor,
(ii) unless prohibited by applicable law and regulations, to vote
on behalf of the Holders of the Securities of any series in any
election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency
proceedings or person performing similar functions in comparable
proceedings, and
(iii) to collect and receive any moneys or other property payable
or deliverable on any such claims, and to distribute all amounts
received with respect to the claims of the Securityholders and of the
Trustee on their behalf; and any trustee, receiver, or liquidator,
custodian or other similar official is hereby authorized by each of
the Securityholders to make payments to the Trustee, and, in the event
that the Trustee shall consent to the making of payments directly to
the Securityholders, to pay to the Trustee such amounts as shall be
sufficient to cover reasonable compensation to the Trustee, each
predecessor trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor trustee except as a
result of its negligence or bad faith and all other amounts due to the
Trustee or any predecessor trustee pursuant to Section 6.06.
35
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities of any series or Coupons appertaining to such
Securities, may be enforced by the Trustee without the possession of any of the
Securities of such series or Coupons appertaining to such Securities or the
production thereof on any trial or other proceedings relative thereto, and any
such action or proceedings instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment, subject to
the payment of the expenses, disbursements and compensation of the Trustee, each
predecessor trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Holders of the Securities or Coupons appertaining to such
Securities in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the Holders
of the Securities or Coupons appertaining to such Securities in respect to which
such action was taken, and it shall not be necessary to make any Holders of such
Securities or Coupons appertaining to such Securities parties to any such
proceedings.
SECTION 5.03. Application of Proceeds. Any moneys collected by the
Trustee pursuant to this Article in respect of any series shall be applied in
the following order at the date or dates fixed by the Trustee and, in case of
the distribution of such moneys on account of principal or interest, upon
presentation of the several Securities and Coupons appertaining to such
Securities in respect of which monies have been collected and stamping (or
otherwise noting) thereon the payment, or issuing Securities of such series in
reduced principal amounts in exchange for the presented Securities of like
series if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due to the Trustee or any
predecessor trustee pursuant to Section 6.06;
36
SECOND: In case the principal of the Securities of such series in
respect of which moneys have been collected shall not have become and
be then due and payable, to the payment of interest on the Securities
of such series in default in the order of the maturity of the
installments of such interest, with interest (to the extent that such
interest has been collected by the Trustee) upon the overdue
installments of interest at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities)
specified in such Securities, such payments to be made ratably to the
Persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series in
respect of which moneys have been collected shall have become and
shall be then due and payable, to the payment of the whole amount then
owing and unpaid upon all the Securities of such series for principal
and interest, with interest upon the overdue principal, and (to the
extent that such interest has been collected by the Trustee) upon
overdue installments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series; and in case
such moneys shall be insufficient to pay in full the whole amount so
due and unpaid upon the Securities of such series, then to the payment
of such principal and interest or Yield to Maturity, without
preference or priority of principal over interest or Yield to
Maturity, or of interest or Yield to Maturity over principal, or of
any installment of interest over any other installment of interest, or
of any Security of such series over any other Security of such series,
ratably to the aggregate of such principal and accrued and unpaid
interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer or
any other Person lawfully entitled thereto.
SECTION 5.04. Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 5.05. Restoration of Rights on Abandonment of Proceedings. In
case the Trustee shall have proceeded to enforce any right under this Indenture
37
and such proceedings shall have been discontinued or abandoned for any reason,
or shall have been determined adversely to the Trustee, then and in every such
case the Issuer and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Issuer, the Trustee and the Securityholders shall continue as though no such
proceedings had been taken.
SECTION 5.06. Limitations on Suits by Securityholders. No Holder of any
Security of any series or of any Coupon appertaining thereto shall have any
right by virtue or by availing of any provision of this Indenture to institute
any action or proceeding at law or in equity or in bankruptcy or otherwise upon
or under or with respect to this Indenture, or for the appointment of a trustee,
receiver, liquidator, custodian or other similar official or for any other
remedy hereunder, unless such Holder previously shall have given to the Trustee
written notice of default and of the continuance thereof, as hereinbefore
provided, and unless also the Holders of not less than 25% in aggregate
principal amount of the Securities of such series then Outstanding shall have
made written request upon the Trustee to institute such action or proceedings in
its own name as trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby and the Trustee for 60 days after
its receipt of such notice, request and offer of indemnity shall have failed to
institute any such action or proceeding and no direction inconsistent with such
written request shall have been given to the Trustee pursuant to Section 5.09;
it being understood and intended, and being expressly covenanted by the taker
and Holder of every Security or Coupon with every other taker and Holder and the
Trustee, that no one or more Holders of Securities of any series or Coupons
appertaining to such Securities shall have any right in any manner whatever by
virtue or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of any other such Holder of Securities or Coupons
appertaining to such Securities, or to obtain or seek to obtain priority over or
preference to any other such Holder or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of the applicable series and Coupons
appertaining to such Securities. For the protection and enforcement of the
provisions of this Section, each and every Securityholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
SECTION 5.07. Unconditional Right of Securityholders to Institute
Certain Suits. Notwithstanding any other provision in this Indenture and any
provision of any Security, the right of any Holder of any Security or Coupon to
receive payment of the principal of and interest on such Security or Coupon on
or after the respective due dates expressed in such Security or Coupon, or to
convert such Security in accordance with Article 14, or to institute suit for
the enforcement of
38
any such payment on or after such respective dates, or for the enforcement of
such conversion right, shall not be impaired or affected without the consent of
such Holder.
SECTION 5.08. Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default. Except as provided in Section 5.06, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders of Securities or
Coupons is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of Securities or
Coupons to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power or
shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 5.06, every power and remedy given
by this Indenture or by law to the Trustee or to the Holders of Securities or
Coupons may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Holders of Securities or Coupons.
SECTION 5.09. Control by Holders of Securities. The Holders of a
majority in aggregate principal amount of the Securities of each series affected
(with each series voting as a separate class) at the time Outstanding shall have
the right to direct the time, method, and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred
on the Trustee with respect to the Securities of such series by this Indenture;
provided, that such direction shall not be otherwise than in accordance with law
and the provisions of this Indenture and provided, further, that (subject to the
provisions of Section 6.01) the Trustee shall have the right to decline to
follow any such direction if the Trustee, being advised by counsel, shall
determine that the action or proceeding so directed may not lawfully be taken or
if the Trustee in good faith by its board of directors, the executive committee,
or a trust committee of directors or Responsible Officers of the Trustee shall
determine that the action or proceedings so directed would involve the Trustee
in personal liability or if the Trustee in good faith shall so determine that
the actions or forebearances specified in or pursuant to such direction would be
unduly prejudicial to the interests of Holders of the Securities of all series
so affected not joining in the giving of said direction, it being understood
that (subject to Section 6.01) the Trustee shall have no duty to ascertain
whether or not such actions or forebearances are unduly prejudicial to such
Holders.
39
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
SECTION 5.10. Waiver of Past Defaults. Prior to the declaration of the
acceleration of the maturity of the Securities of any series as provided in
Section 5.01, the Holders of a majority in aggregate principal amount of the
Securities of such series at the time Outstanding may on behalf of the Holders
of all the Securities of such series waive any past default or Event of Default
described in clause (c) or (g) of Section 5.01 (or, in the case of an event
specified in clause (c) or (g) of Section 5.01 which relates to less than all
series of Securities then Outstanding, the Holders of a majority in aggregate
principal amount of the Securities then Outstanding affected thereby (each
series voting as a separate class) may waive any such default or Event of
Default, or, in the case of an event specified in clause (c) or (g) (if the
Event of Default under clause (c) or (g) relates to all series of Securities
then Outstanding), (d) or (e) of Section 5.01 the Holders of Securities of a
majority in principal amount of all the Securities then Outstanding (voting as
one class) may waive any such default or Event of Default), and its consequences
except a default in respect of a covenant or provision hereof which cannot be
modified or amended without the consent of the Holder of each Security affected.
In the case of any such waiver, the Issuer, the Trustee and the Holders of the
Securities of such series shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Upon any such waiver, such default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 5.11. Trustee to Give Notice of Default, but May Withhold in
Certain Circumstances. The Trustee shall, within 90 days after the occurrence of
a default with respect to the Securities of any series, give notice of all
defaults with respect to that series known to the Trustee (a) if any
Unregistered Securities of that series are then Outstanding, to the Holders
thereof, by publication at least once in an Authorized Newspaper in the Borough
of Manhattan, The City of New York, and at least once in an Authorized Newspaper
in London (and, if required by Section 3.08, at least once in an Authorized
Newspaper in Luxembourg) and (b) to all Holders of Securities of such series in
the manner and to the extent provided in Section 4.03, unless in each case such
defaults shall have been cured before the mailing or publication of such notice
(the term "defaults" for the purpose of this Section being hereby defined to
mean any event or condition
40
which is, or with notice or lapse of time or both would become, an Event of
Default); provided, that, except in the case of default in the payment of the
principal of or interest on any of the Securities of such series, or in the
payment of any sinking fund installment on such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee, or a trust committee of directors or trustees and/or
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Securityholders of such
series.
SECTION 5.12. Right of Court to Require Filing of Undertaking to Pay
Costs. All parties to this Indenture agree, and each Holder of any Security or
Coupon by his or her acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series, or, in the case of
any suit relating to or arising under clause (c) or (g) of Section 5.01 (if the
suit relates to Securities of more than one but less than all series), 10% in
aggregate principal amount of Securities then Outstanding and affected thereby,
or in the case of any suit relating to or arising under clause (c) or (g) (if
the suit under clause (c) or (g) relates to all the Securities then
Outstanding), (d) or (e) of Section 5.01, 10% in aggregate principal amount of
all Securities then Outstanding, or to any suit instituted by any Securityholder
for the enforcement of the payment of the principal of or interest on any
Security on or after the due date expressed in such Security or any date fixed
for redemption or for the enforcement of a right to convert any Security in
accordance with Article 14.
ARTICLE 6
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of the Trustee; During
Default; Prior to Default. With respect to the Holders of any series of
Securities issued hereunder, the Trustee, prior to the occurrence of an Event of
Default with respect to the Securities of a particular series and after the
curing or waiving of all
41
Events of Default which may have occurred with respect to such series,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture. In case an Event of Default with respect to the
Securities of a series has occurred (which has not been cured or waived), the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own wilful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to the
Securities of any series and after the curing or waiving of all such Events of
Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with respect to the
Securities of any series shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but, in the case of
any such statements, certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction of
the Holders pursuant to Section 5.09 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.
42
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
The provisions of this Section 6.01 are in furtherance of and subject
to Sections 315 and 316 of the Trust Indenture Act of 1939.
SECTION 6.02. Certain Rights of the Trustee. In furtherance of and
subject to the Trust Indenture Act of 1939 and subject to Section 6.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, bond, debenture, note, coupon, security or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless other
evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the Trustee by a copy
thereof certified by the secretary or an assistant secretary of the Issuer;
(c) the Trustee may consult with counsel and any advice or Opinion of
Counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted to be taken by it hereunder in good faith
and in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Indenture;
43
(f) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be bound
to make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, appraisal, bond, debenture, note, coupon, security, or other
paper or document unless requested in writing so to do by the Holders of not
less than a majority in aggregate principal amount of the Securities of all
series affected then Outstanding; provided, that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Indenture, the Trustee may require reasonable indemnity
against such expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such investigation shall be paid by the Issuer or,
if paid by the Trustee or any predecessor trustee, shall be repaid by the Issuer
upon demand; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder.
SECTION 6.03. Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein and
in the Securities, except the Trustee's certificates of authentication, shall be
taken as the statements of the Issuer, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture or of the Securities or Coupons. The
Trustee shall not be accountable for the use or application by the Issuer of any
of the Securities or of the proceeds thereof.
SECTION 6.04. Trustee and Agents May Hold Securities or Coupons;
Collections, Etc. The Trustee or any agent of the Issuer or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
or Coupons with the same rights it would have if it were not the Trustee or such
agent and may otherwise deal with the Issuer and receive, collect, hold and
retain collections from the Issuer with the same rights it would have if it were
not the Trustee or such agent.
SECTION 6.05. Moneys Held by Trustee. Subject to the provisions of
Section 10.04 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
44
required by mandatory provisions of law. Neither the Trustee nor any agent of
the Issuer or the Trustee shall be under any liability for interest on any
moneys received by it hereunder.
SECTION 6.06. Compensation and Indemnification of Trustee and its Prior
Claim. The Issuer covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, reasonable compensation (which shall not
be limited by any provision of law in regard to the compensation of a trustee of
an express trust) and the Issuer covenants and agrees to pay or reimburse the
Trustee and each predecessor trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all agents and other persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad faith.
The Issuer also covenants to indemnify the Trustee and each predecessor trustee
for, and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of this Indenture or the trusts hereunder
and its duties hereunder, including the costs and expenses of defending itself
against or investigating any claim of liability in the premises. The obligations
of the Issuer under this Section to compensate and indemnify the Trustee and
each predecessor trustee and to pay or reimburse the Trustee and each
predecessor trustee for expenses, disbursements and advances shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. Such additional indebtedness shall be a senior
claim to that of the Securities upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the benefit of the Holders
of particular Securities or Coupons, and the Securities are hereby subordinated
to such senior claim.
SECTION 6.07. Right of Trustee to Rely on Officers' Certificate, Etc.
Subject to Sections 6.01 and 6.02, whenever in the administration of the trusts
of this Indenture the Trustee shall deem it necessary or desirable that a matter
be proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
45
SECTION 6.08. Indentures Creating Potential Conflicting Interests for
the Trustee. No indentures are hereby specifically described for the purposes of
Section 310(b)(1) of the Trust Indenture Act of 1939.
SECTION 6.09. Persons Eligible for Appointment as Trustee. The Trustee
for each series of Securities hereunder shall at all times be a corporation
having a combined capital and surplus of at least $50,000,000 and shall be
eligible in accordance with the provisions of Section 310(a) of the Trust
Indenture Act of 1939. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of a Federal, State or
District of Columbia supervising or examining authority, then, for the purposes
of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published.
SECTION 6.10. Resignation and Removal; Appointment of Successor
Trustee. (a) The Trustee, or any trustee or trustees hereafter appointed, may at
any time resign with respect to one or more or all series of Securities by
giving written notice of resignation to the Issuer and (i) if any Unregistered
Securities of a series affected are then Outstanding, by giving notice of such
resignation to the Holders thereof, by publication at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York, and at
least once in an Authorized Newspaper in London (and, if required by Section
3.08, at least once in an Authorized Newspaper in Luxembourg), (ii) if any
Unregistered Securities of a series affected are then Outstanding, by mailing
notice of such resignation to the Holders thereof who have filed their names and
addresses with the Trustee pursuant to Section 4.01 at such addresses as were so
furnished to the Trustee and (iii) by mailing notice of such resignation to the
Holders of then Outstanding Registered Securities of each series affected at
their addresses as they shall appear on the registry books. Upon receiving such
notice of resignation, the Issuer shall promptly appoint a successor trustee or
trustees with respect to the applicable series by written instrument in
duplicate, executed by authority of the Board of Directors, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee or trustees. If no successor trustee shall have been so
appointed with respect to any series and have accepted appointment within 30
days after the mailing of such notice of resignation, the resigning trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee, or any Securityholder who has been a bona fide Holder of a Security or
Securities of the applicable series for at least six months may, subject to the
provisions of Section 5.12, on behalf of himself or herself and all others
similarly situated, petition any such court for the appointment of a successor
trustee. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, appoint a successor trustee.
46
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act of 1939 with respect to any
series of Securities after written request therefor by the Issuer or
by any Securityholder who has been a bona fide Holder of a Security or
Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 310(a) of the Trust Indenture Act of 1939
and shall fail to resign after written request therefor by the Issuer
or by any Securityholder; or
(iii) the Trustee shall become incapable of acting with respect
to any series of Securities, or shall be adjudged a bankrupt or
insolvent, or a receiver or liquidator of the Trustee or of its
property shall be appointed, or any public officer shall take charge
or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of Directors
of the Issuer, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to Section 315(e) of
the Trust Indenture Act of 1939, any Securityholder who has been a bona fide
Holder of a Security or Securities of such series for at least six months may on
behalf of himself or herself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee with respect to such series. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series at the time Outstanding may at any time remove the
Trustee with respect to Securities of such series and appoint a successor
trustee with respect to the Securities of such series by delivering to the
Trustee so removed, to the successor trustee so appointed and to the Issuer the
evidence provided for in Section 7.01 of the action in that regard taken by the
Securityholders.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such series
pursuant to
47
any of the provisions of this Section 6.10 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 6.11.
SECTION 6.11. Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 6.10 shall execute and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as if
originally named as trustee for such series hereunder; but, nevertheless, on the
written request of the Issuer or of the successor trustee, upon payment of its
charges then unpaid, the trustee ceasing to act shall, subject to Section 10.04,
pay over to the successor trustee all moneys at the time held by it hereunder
and shall execute and deliver an instrument transferring to such successor
trustee all such rights, powers, duties and obligations. Upon request of any
such successor trustee, the Issuer shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 6.06.
If a successor trustee is appointed with respect to the Securities of
one or more (but not all) series, the Issuer, the predecessor trustee and each
successor trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor trustee with respect to the
Securities of any series as to which the predecessor trustee is not retiring
shall continue to be vested in the predecessor trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such trustees co-trustees of the same trust and that
each such trustee shall be trustee of a trust or trusts under separate
indentures.
No successor trustee with respect to any series of Securities shall
accept appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor trustee shall be qualified under the provisions of
Section 310(b) of the Trust Indenture Act of 1939 and eligible under the
provisions of Section 310(a) of the Trust Indenture Act of 1939.
48
Upon acceptance of appointment by any successor trustee as provided in
this Section 6.11, the Issuer shall mail notice thereof (a) if any Unregistered
Securities of a series affected are then Outstanding, to the Holders thereof, by
publication of such notice at least once in an Authorized Newspaper in the
Borough of Manhattan, The City of New York, and at least once in an Authorized
Newspaper in London (and, if required by Section 3.08, at least once in an
Authorized Newspaper in Luxembourg), (b) if any Unregistered Securities of a
series affected are then Outstanding, to the Holders thereof who have filed
their names and addresses with the Trustee pursuant to Section 4.01, by mailing
such notice to such Holders at such addresses as were so furnished to the
Trustee (and the Trustee shall make such information available to the Issuer for
such purpose) and (c) to the Holders of Registered Securities of each series
affected, by mailing such notice to such Holders at their addresses as they
shall appear on the registry books. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called for
by the preceding sentence may be combined with the notice called for by Section
6.10. If the Issuer fails to mail such notice within ten days after acceptance
of appointment by the successor trustee, the successor trustee shall cause such
notice to be given at the expense of the Issuer.
SECTION 6.12. Merger, Conversion, Consolidation, or Succession to
Business of Trustee. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder; provided, that such
corporation shall be qualified under the provisions of Section 310(b) of the
Trust Indenture Act of 1939 and eligible under the provisions of Section 310(a)
of the Trust Indenture Act of 1939, without the execution or filing of any paper
or any further act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding.
In case, at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture, any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Securities of
such series or in this Indenture provided that the certificate of the Trustee
shall have; provided, that the right to adopt the certificate of authentication
of any predecessor trustee or to authenticate Securities
49
of any series in the name of any predecessor trustee shall apply only to its
successor or successors by merger, conversion or consolidation.
ARTICLE 7
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Evidence of Action Taken by Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all series may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such specified percentage of Securityholders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee. Proof of execution of any instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture and
(subject to Sections 6.01 and 6.02) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Article.
SECTION 7.02. Proof of Execution of Instruments and of Holding of
Securities. Subject to Sections 6.01 and 6.02, the execution of any instrument
by a Securityholder or his or her agent or proxy may be proved in the following
manner:
(a) The fact and date of the execution by any Holder of any instrument
may be proved by the certificate of any notary public or other officer of any
jurisdiction authorized to take acknowledgments of deeds or administer oaths
that the person executing such instruments acknowledged to him or her the
execution thereof, or by an affidavit of a witness to such execution sworn to
before any such notary or other such officer. Where such execution is by or on
behalf of any legal entity other than an individual, such certificate or
affidavit shall also constitute sufficient proof of the authority of the person
executing the same. The fact of the holding by any Holder of an Unregistered
Security of any series, and the identifying number of such Security and the date
of his or her holding the same, may be proved by the production of such Security
or by a certificate executed by any trust company, bank, banker or recognized
securities dealer wherever situated satisfactory to the Trustee, if such
certificate shall be deemed by the Trustee to be satisfactory. Each such
certificate shall be dated and shall state that on the date thereof a Security
of such series bearing a specified identifying number was deposited with or
exhibited to such trust company, bank, banker or recognized securities dealer by
the Person named in such certificate. Any such certificate
50
may be issued in respect of one or more Unregistered Securities of one or more
series specified therein. The holding by the Person named in any such
certificate of any Unregistered Securities of any series specified therein shall
be presumed to continue for a period of one year from the date of such
certificate unless at the time of any determination of such holding (i) another
certificate bearing a later date issued in respect of the same Securities shall
be produced, or (ii) the Security of such series specified in such certificate
shall be produced by some other Person, or (iii) the Security of such series
specified in such certificate shall have ceased to be Outstanding. Subject to
Sections 6.01 and 6.02, the fact and date of the execution of any such
instrument and the amount and numbers of Securities of any series held by the
Person so executing such instrument and the amount and numbers of any Security
or Securities for such series may also be proven in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee for such
series or in any other manner which the Trustee for such series may deem
sufficient.
(b) In the case of Registered Securities, the ownership of such
Securities shall be proved by the Security register or by a certificate of the
Security registrar.
(c) If the Issuer shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other action, the Issuer may, at its option, by Board Resolution, fix
in advance a record date for the determination of Holders of Registered
Securities entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other action, but the Issuer shall have no obligation
to do so. Notice of such record date shall be given to the Trustee as soon as
practicable after the time that the record date has been fixed. If such a record
date is fixed, such request, demand, authorization, direction, notice, consent,
waiver or other action may be given before or after such record date, but only
the Holders of Registered Securities of record at the close of business on such
record date shall be deemed to be Holders of Registered Securities for the
purposes of determining whether Holders of Registered Securities of the
requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other action, and for that purpose the Outstanding Securities shall be
computed as of such record date; provided, that no such authorization, agreement
or consent by the Holders of Registered Securities on such record date shall be
deemed effective unless it shall become effective pursuant to the provisions of
this Indenture not later than six months after the record date.
SECTION 7.03. Holders to Be Treated as Owners. The Issuer, the Trustee
and any agent of the Issuer or the Trustee may deem and treat the Person in
whose name any Security shall be registered upon the Security register for such
series as the absolute owner of such Security (whether or not such Security
shall be
51
overdue and notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or on account of the principal of, and,
subject to the provisions of this Indenture, interest on, such Security and for
all other purposes; and neither the Issuer nor the Trustee nor any agent of the
Issuer or the Trustee shall be affected by any notice to the contrary. The
Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
Holder of any Unregistered Security and the Holder of any Coupon as the absolute
owner of such Unregistered Security or Coupon (whether or not such Unregistered
Security or Coupon shall be overdue) for the purpose of receiving payment
thereof or on account thereof and for all other purposes and neither the Issuer,
the Trustee, nor any agent of the Issuer or the Trustee shall be affected by any
notice to the contrary. All such payments so made to any such Person, or upon
his or her order, shall be valid, and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for moneys payable upon any
such Unregistered Security or Coupon.
SECTION 7.04. Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the Issuer
or any other obligor on the Securities with respect to which such determination
is being made or by any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Issuer or any other
obligor on the Securities with respect to which such determination is being made
shall be disregarded and deemed not to be Outstanding for the purpose of any
such determination, except that, for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver,
only Securities which the Trustee knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Issuer or any other obligor upon the Securities or any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer or any other obligor on the Securities. In case
of a dispute as to such right, the advice of counsel shall be full protection in
respect of any decision made by the Trustee in accordance with such advice. Upon
request of the Trustee, the Issuer shall furnish to the Trustee promptly an
Officers' Certificate listing and identifying all Securities, if any, known by
the Issuer to be owned or held by or for the account of any of the
above-described Persons; and, subject to Sections 6.01 and 6.02, the Trustee
shall be entitled to accept such Officers' Certificate as conclusive evidence of
the facts therein set forth and of the fact that all Securities not listed
therein are Outstanding for the purpose of any such determination.
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SECTION 7.05. Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 7.01, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as concerns such
Security. Except as aforesaid, any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities issued in exchange or
substitution therefor or on registration of transfer thereof, irrespective of
whether or not any notation in regard thereto is made upon any such Security.
Any action taken by the Holders of the percentage in aggregate principal amount
of the Securities of any or all series, as the case may be, specified in this
Indenture in connection with such action shall be conclusively binding upon the
Issuer, the Trustee and the Holders of all the Securities affected by such
action.
ARTICLE 8
SUPPLEMENTAL INDENTURES
SECTION 8.01. Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by a resolution of its Board of
Directors, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto in form satisfactory to the Trustee
for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more series any property or assets;
(b) to evidence the succession of another corporation to the Issuer,
or successive successions, and the assumption by the successor corporation of
the covenants, agreements and obligations of the Issuer pursuant to Article 9;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as its Board of Directors and the Trustee
shall consider to be for the protection of the Holders of Securities or Coupons,
and to make the occurrence, or the occurrence and continuance, of a default in
any such additional covenants, restrictions, conditions or provisions an Event
of Default permitting the enforcement of all or any of the several remedies
provided
53
in this Indenture as herein set forth; provided, that in respect of any such
additional covenant, restriction, condition or provision such supplemental
indenture may provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case of other defaults)
or may provide for an immediate enforcement upon such an Event of Default or may
limit the remedies available to the Trustee upon such an Event of Default or may
limit the right of the Holders of a majority in aggregate principal amount of
the Securities of such series to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture, or to make any other provisions as the Board of Directors may deem
necessary or desirable; provided, that no such action shall adversely affect the
interests of the Holders of the Securities or Coupons;
(e) to establish the form or terms of Securities of any series or of
the Coupons appertaining to such Securities as permitted by Sections 2.01 and
2.03 and to provide for adjustment of conversion rights pursuant to Section
14.05; and
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the requirements of Section
6.11.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
may be executed without the consent of the Holders of any of the Securities at
the time Outstanding, notwithstanding any of the provisions of Section 8.02.
SECTION 8.02. Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Article 7) of the Holders of not less
than a majority in aggregate principal amount of the Securities at the time
Outstanding of all series affected by such supplemental indenture (voting as one
class), the Issuer, when authorized by a resolution of its Board of Directors,
and
54
the Trustee may, from time to time and at any time, enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of any supplemental indenture or of modifying in any manner the rights of the
Holders of the Securities of each such series or of the Coupons appertaining to
such Securities; provided, that no such supplemental indenture shall (a) extend
the final maturity of any Security, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon, or reduce any
amount payable on redemption thereof, or make the principal thereof (including
any amount in respect of original issue discount) or interest thereon payable in
any coin or currency other than that provided in the Securities and Coupons or
in accordance with the terms thereof, or reduce the amount of the principal of
an Original Issue Discount Security that would be due and payable upon an
acceleration of the maturity thereof pursuant to Section 5.01 or the amount
thereof provable in bankruptcy pursuant to Section 5.02, or alter the provisions
of Section 11.11 or 11.12, or impair or affect the right of any Securityholder
to institute suit for the payment or conversion thereof, or materially and
adversely affect the right to convert the Securities in accordance with Article
14 or, if the Securities provide therefor, any right of repayment at the option
of the Securityholder, in each case without the consent of the Holder of each
Security so affected; provided, that no consent of any Holder of any Security
shall be necessary under this Section 8.02 to permit the Trustee and the Issuer
to execute supplemental indentures pursuant to Section 8.01(e) and Section 14.05
of this Indenture, or (b) reduce the aforesaid percentage of Securities of any
series, the consent of the Holders of which is required for any such
supplemental indenture, without the consent of the Holders of each Security so
affected.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of Holders of Securities of such series, or of Coupons appertaining
to such Securities, with respect to such covenant or provision, shall be deemed
not to affect the rights under this Indenture of the Holders of Securities of
any other series or of the Coupons appertaining to such Securities.
Upon the request of the Issuer, accompanied by a copy of a resolution
of the Board of Directors certified by the secretary or an assistant secretary
of the Issuer authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Securityholders
as aforesaid and other documents, if any, required by Section 7.01, the Trustee
shall join with the Issuer in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own rights, duties or
immunities
55
under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Securityholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall give a notice thereof (a) to the Holders of then Outstanding Registered
Securities of each series affected thereby, by mailing a notice thereof by
first-class mail to such Holders at their addresses as they shall appear on the
Security register, (b) if any Unregistered Securities of a series affected
thereby are then Outstanding, to the Holders thereof who have filed their names
and addresses with the Trustee pursuant to Section 4.01, by mailing a notice
thereof by first-class mail to such Holders at such addresses as were so
furnished to the Trustee and (c) if any Unregistered Securities of a series
affected thereby are then Outstanding, to all Holders thereof, by publication of
a notice thereof at least once in an Authorized Newspaper in the Borough of
Manhattan, The City of New York, and at least once in an Authorized Newspaper in
London (and, if required by Section 3.08, at least once in an Authorized
Newspaper in Luxembourg), and in each case such notice shall set forth in
general terms the substance of such supplemental indenture. Any failure of the
Trustee to mail or publish such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 8.03. Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer and the Holders of Securities of
each series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
SECTION 8.04. Documents to Be Given to Trustee. The Trustee, subject to
the provisions of Sections 6.11 and 6.02, may receive an Officers' Certificate
and an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article 8 complies with the applicable provisions of
this Indenture.
56
SECTION 8.05. Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee for such series as
to any matter provided for by such supplemental indenture or as to any action
taken by Securityholders. If the Issuer or the Trustee shall so determine, new
Securities of any series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Issuer,
authenticated by the Trustee and delivered in exchange for the Securities of
such series then Outstanding.
ARTICLE 9
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.01. Issuer May Consolidate, Etc., on Certain Terms. The
Issuer covenants that it will not merge or consolidate with any other
corporation or sell or convey (including by way of lease) all or substantially
all of its assets to any Person, unless (a) either the Issuer shall be the
continuing corporation, or the successor corporation or the Person which
acquires by sale or conveyance substantially all the assets of the Issuer (if
other than the Issuer) shall expressly assume the due and punctual payment of
the principal of and interest on all the Securities and Coupons, according to
their tenor, and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed or observed by the
Issuer, including, without limitation, the conversion rights, if any, provided
for in accordance with Article 14, by supplemental indenture satisfactory to the
Trustee, executed and delivered to the Trustee by such corporation or entity,
and shall be a corporation or entity organized under the laws of the United
States of America or any State thereof or a corporation or entity not organized
under such laws which shall agree, in form satisfactory to the Trustee, (i) to
subject itself to the jurisdiction of the United States district court for the
Southern District of New York, and (ii) to indemnify and hold harmless the
holders of all Securities or Coupons against (A) any tax, assessment or
governmental charge imposed on such holders by a jurisdiction other than the
United States or any political subdivision or taxing authority thereof or
therein with respect to, and withheld on the making of, any payment of principal
of or interest on such Securities or Coupons and which would not have been so
imposed and withheld had such consolidation, merger, sale or conveyance not been
made and (B) any tax, assessment or governmental charge imposed on or relating
to, and any costs or expenses involved in, such consolidation, merger, sale or
conveyance, and (b) the Issuer or such successor corporation or entity, as
57
the case may be, shall not, immediately after such merger or consolidation, or
such sale or conveyance, be in default in the performance of any such covenant
or condition.
SECTION 9.02. Successor Issuer Substituted. In case of any such
consolidation, merger, sale or conveyance, and following such an assumption by
the successor corporation or entity, such successor corporation or entity shall
succeed to and be substituted for the Issuer with the same effect as if it had
been named herein. Such successor corporation or entity may cause to be signed,
and may issue either in its own name or in the name of the Issuer prior to such
succession any or all of the Securities issuable hereunder, together with any
Coupons appertaining thereto, which theretofore shall not have been signed by
the Issuer and delivered to the Trustee; and, upon the order of such successor
corporation or entity instead of the Issuer and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities, together with any Coupons
appertaining thereto, which previously shall have been signed and delivered by
the officers of the Issuer to the Trustee for authentication, and any
Securities, together with any Coupons appertaining thereto, which such successor
corporation or entity thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All of the Securities so issued, together with any
Coupons appertaining thereto, shall in all respects have the same legal rank and
benefit under this Indenture as the Securities and Coupons theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Securities and Coupons had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale, lease or conveyance,
such changes in phraseology and form (but not in substance) may be made in the
Securities and Coupons thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance by
way of lease), the Issuer or any successor corporation or entity which shall
theretofore have become such in the manner described in this Article shall be
discharged from all obligations and covenants under this Indenture and the
Securities and may be liquidated and dissolved.
SECTION 9.03. Opinion of Counsel and Officers' Certificate to Trustee.
The Trustee, subject to the provisions of Sections 6.11 and 6.02, may receive an
Opinion of Counsel and an Officers' Certificate, prepared in accordance with
Section 11.05, as conclusive evidence that any such consolidation, merger, sale,
lease or conveyance, and any such assumption, and any such liquidation or
dissolution, complies with the applicable provisions of this Indenture.
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ARTICLE 10
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 10.01. Satisfaction and Discharge of Indenture. (a) If at any
time (i) the Issuer shall have paid or caused to be paid the principal of and
interest on all the Securities of any series Outstanding hereunder and all
unmatured Coupons appertaining thereto (other than Securities of such series and
Coupons appertaining thereto which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 2.09) as and when the same
shall have become due and payable, or (ii) the Issuer shall have delivered to
the Trustee for cancellation all Securities of any series theretofore
authenticated and all unmatured Coupons appertaining thereto (other than any
Securities of such series and Coupons appertaining thereto which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as provided
in Section 2.09) or (iii) in the case of any series of Securities the exact
amount (including the currency of payment) of principal of and interest due on
which on the dates referred to in clause (B) below can be determined at the time
of making the deposit referred to in such clause, (A) all the Securities of such
series and all unmatured Coupons appertaining thereto not theretofore delivered
to the Trustee for cancellation shall have become due and payable, or are by
their terms to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and (B) the Issuer shall have irrevocably
deposited or caused to be deposited with the Trustee as trust funds the entire
amount in cash (other than moneys repaid by the Trustee or any paying agent to
the Issuer in accordance with Section 10.04) or, in the case of any series of
Securities the payments on which may only be made in Dollars, direct obligations
of the United States of America, backed by its full faith and credit ("U.S.
Government Obligations"), maturing as to principal and interest in such amounts
and at such times as will insure the availability of cash sufficient to pay on
any subsequent interest payment date all interest due on such interest payment
date on the Securities of such series and all Coupons appertaining thereto and
to pay at maturity or upon redemption all Securities of such series and all
unmatured Coupons appertaining thereto (in each case other than any Securities
of such series and Coupons appertaining thereto which shall have been destroyed,
lost or stolen and which shall have been replaced or paid as provided in Section
2.09) not theretofore delivered to the Trustee for cancellation, including
principal and interest due or to become due to such date of maturity, as the
case may be, and if, in any such case, the Issuer shall also pay or cause to be
paid all other sums payable hereunder by the Issuer, including amounts due the
Trustee pursuant to Section 6.06, with respect to Securities of such series,
then this Indenture shall cease to be of further effect with respect to
Securities of such series (except as to (1) rights of registration of transfer,
conversion and exchange of Securities of such series, and of Coupons
appertaining thereto, and the Issuer's
59
right of optional redemption, (2) substitution of mutilated, defaced, destroyed,
lost or stolen Securities or Coupons, (3) rights of Holders of Securities and
Coupons appertaining thereto to receive payments of principal thereof and
interest thereon upon the original stated due dates therefor (but not upon
acceleration) and remaining rights of the Holders to receive mandatory sinking
fund payments, if any, (4) the rights (including the Trustee's rights under
Section 10.05) and immunities of the Trustee hereunder and the Trustee's
obligations under Sections 10.02 and 10.04, (5) the rights of the Holders of
Securities of such series and Coupons appertaining thereto as beneficiaries
hereof with respect to the property so deposited with the Trustee payable to all
or any of them and (6) the obligations of the Issuer under Section 3.02), and
the Trustee, on demand of the Issuer accompanied by an Officers' Certificate and
an Opinion of Counsel which complies with Section 11.05 and at the cost and
expense of the Issuer, shall execute proper instruments acknowledging such
satisfaction of and discharging this Indenture with respect to such series;
provided, that the rights of Holders of the Securities and Coupons to receive
amounts in respect of principal of and interest on the Securities and Coupons
held by them shall not be delayed longer than required by then-applicable
mandatory rules or policies of any securities exchange upon which the Securities
are listed. The Issuer agrees to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred and to compensate the Trustee for
any services thereafter reasonably and properly rendered by the Trustee in
connection with this Indenture or the Securities of such series.
(b) The following provisions shall apply to the Securities of each
series unless specifically otherwise provided in a Board Resolution, Officers'
Certificate or indenture supplemental hereto provided pursuant to Section 2.03.
In addition to discharge of the Indenture pursuant to the next preceding
paragraph, in the case of any series of Securities the exact amounts (including
the currency of payment) of principal of and interest subsequently due on which
can be determined at the time of making the deposit referred to in clause (A)
below, the Issuer shall be deemed to have paid and discharged the entire Debt on
all the Securities of such a series and the Coupons appertaining thereto on the
121st day after the date of the deposit referred to in subparagraph (A) below,
and the provisions of this Indenture with respect to the Securities of such
series and Coupons appertaining thereto shall no longer be in effect (except as
to (i) rights of registration of transfer, conversion and exchange of Securities
of such series, and of Coupons appertaining thereto, (ii) substitution of
apparently mutilated, defaced, destroyed, lost or stolen Securities or Coupons,
(iii) rights of Holders of Securities and Coupons appertaining thereto to
receive payments of principal thereof and interest thereon, upon the original
stated due dates therefor (but not upon acceleration) and remaining rights of
the Holders to receive sinking fund payments, if any, (iv) the rights (including
the Trustee's rights under Section 10.05) and immunities of
60
the Trustee hereunder and the Trustee's obligations with respect to the
Securities of such series under Sections 10.02 and 10.04, (v) the rights of the
Holders of Securities of such series and Coupons appertaining thereto as
beneficiaries hereof with respect to the property so deposited with the Trustee
payable to all or any of them and (vi) the obligations of the Issuer under
Section 3.02) and the Trustee, at the expense of the Issuer, shall at the
Issuer's request, execute proper instruments acknowledging the same, if
(A) with reference to this provision the Issuer has
irrevocably deposited or caused to be irrevocably deposited
with the Trustee as trust funds in trust, specifically pledged
as security for, and dedicated solely to, the benefit of the
Holders of the Securities of such series and Coupons
appertaining thereto (1) cash in an amount, or (2) in the case
of any series of Securities the payments on which may only be
made in Dollars, U.S. Government Obligations, maturing as to
principal and interest at such times and in such amounts as
will insure the availability of cash or (3) a combination
thereof, sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay (i) the
principal and interest on all Securities of such series and
Coupons appertaining thereto on the date that such principal
or interest is due and payable and (ii) any mandatory sinking
fund payments on the day on which such payments are due and
payable in accordance with the terms of the Indenture and the
Securities of such series;
(B) such deposit will not result in a breach or violation
of, or constitute a default under, any agreement or instrument
to which the Issuer is a party or by which it is bound;
(C) the Issuer has delivered to the Trustee an Officers'
Certificate and an opinion of independent legal counsel
satisfactory to the Trustee to the effect that the Issuer has
received from, or there has been published by, the Internal
Revenue Service a ruling to the effect that Holders of the
Securities of such series and Coupons appertaining thereto
will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit, defeasance and discharge
and will be subject to Federal income tax on the same amount
and in the same manner and at the same times, as would have
been the case if such deposit, defeasance and discharge had
not occurred; and
61
(D) the Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the defeasance
contemplated by this provision have been complied with, and
the Opinion of Counsel shall also state that such deposit does
not violate applicable law.
SECTION 10.02. Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 10.04, all moneys deposited with the Trustee (or
other trustee) pursuant to Section 10.01 shall be held in trust and applied by
it to the payment, either directly or through any paying agent (including the
Issuer acting as its own paying agent), to the Holders of the particular
Securities of such series and of Coupons appertaining thereto for the payment or
redemption of which such moneys have been deposited with the Trustee, of all
sums due and to become due thereon for principal and interest; but such money
need not be segregated from other funds except to the extent required by law.
SECTION 10.03. Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to Securities
of any series, all moneys then held by any paying agent under the provisions of
this Indenture with respect to such series of Securities shall, upon demand of
the Issuer, be repaid to it or paid to the Trustee and thereupon such paying
agent shall be released from all further liability with respect to such moneys.
SECTION 10.04. Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or any
paying agent for the payment of the principal of or interest on any Security of
any series or Coupons appertaining thereto and not applied but remaining
unclaimed for two years after the date upon which such principal or interest
shall have become due and payable, shall, upon the written request of the Issuer
and unless otherwise required by mandatory provisions of applicable escheat or
abandoned or unclaimed property law, be repaid to the Issuer by the Trustee for
such series or such paying agent, and the Holder of the Securities of such
series and of any Coupons appertaining thereto shall, unless otherwise required
by mandatory provisions of applicable escheat or abandoned or unclaimed property
laws, thereafter look only to the Issuer for any payment which such Holder may
be entitled to collect, and all liability of the Trustee or any paying agent
with respect to such moneys shall thereupon cease; provided, however, that the
Trustee or such paying agent, before being required to make any such repayment
with respect to moneys deposited with it for any payment (a) in respect of
Registered Securities of any series, shall at the expense of the Issuer, mail by
first-class mail to Holders of such Securities at their addresses as they shall
appear on the
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Security register, and (b) in respect of Unregistered Securities of any series,
shall at the expense of the Issuer cause to be published once, in an Authorized
Newspaper in the Borough of Manhattan, The City of New York, and once in an
Authorized Newspaper in London (and if required by Section 3.08, once in an
Authorized Newspaper in Luxembourg), notice, that such moneys remain and that,
after a date specified therein, which shall not be less than 30 days from the
date of such mailing or publication, any unclaimed balance of such money then
remaining will be repaid to the Issuer.
SECTION 10.05. Indemnity for U.S. Government Obligations. The Issuer
shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to
Section 10.01 or the principal or interest received in respect of such
obligations.
ARTICLE 11
MISCELLANEOUS PROVISIONS
SECTION 11.01. Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such, or against any past, present or future stockholder,
officer or director, as such, of the Issuer or of any successor, either directly
or through the Issuer or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance of the Securities and the Coupons appertaining
thereto by the Holders thereof and as part of the consideration for the issue of
the Securities and the Coupons appertaining thereto.
SECTION 11.02. Provisions of Indenture for the Sole Benefit of Parties
and Holders of Securities and Coupons. Nothing in this Indenture, in the
Securities or in the Coupons appertaining thereto, expressed or implied, shall
give or be construed to give to any person, firm or corporation, other than the
parties hereto and their successors and the Holders of the Securities or
Coupons, if any, any legal or equitable right, remedy or claim under this
Indenture or under any covenant or provision herein contained, all such
covenants and provisions being for the sole benefit of the parties hereto and
their successors and of the Holders of the Securities or Coupons, if any.
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SECTION 11.03. Successors and Assigns of Issuer Bound by Indenture. All
the covenants, stipulations, promises and agreements contained in this Indenture
by or on behalf of the Issuer shall bind its successors and assigns, whether so
expressed or not.
SECTION 11.04. Notices and Demands on Issuer, Trustee and Holders of
Securities and Coupons. Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by
the Holders of Securities or Coupons to or on the Issuer may be given or served
by being deposited postage prepaid, first-class mail (except as otherwise
specifically provided herein) addressed (until another address of the Issuer is
filed by the Issuer with the Trustee) to Texas Instruments Incorporated, Post
Office Box 660199, Dallas, Texas 75266-0199, Attn: Secretary. Any notice,
direction, request or demand by the Issuer or any Holder of Securities or
Coupons to or upon the Trustee shall be deemed to have been sufficiently given
or made, for all purposes, if given or made at the Corporate Trust Office, Attn:
Corporate Trustee Administration Department.
Where this Indenture provides for notice to Holders of Registered
Securities, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder entitled thereto, at his or her last address as it appears in the
Security register. In any case where notice to such Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Indenture provides for notice to Holders of
Unregistered Securities, such notice shall be sufficiently given to Holders of
Unregistered Securities if published in an Authorized Newspaper in London and
New York and, if the Unregistered Securities of such series are then listed on
the Luxembourg Stock Exchange or any other stock exchange located outside the
United States and such stock exchange shall so require, in Luxembourg, or in any
other required city or, if not practicable, elsewhere in Europe on a Business
Day at least twice, the first such publication to be not earlier than the
earliest date, and not later than the latest date, prescribed for the giving of
such notice. Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer when such
notice is required to be given pursuant to any provision of this Indenture, then
any manner
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of giving such notice as shall be satisfactory to the Trustee shall be deemed to
be a sufficient giving of such notice.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice of any event to Holders
of Registered Securities when said notice is required to be given pursuant to
any provision of this Indenture or of the Securities, then any manner of giving
such notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice. Neither the failure to give notice, nor any
defect in any notice so given, to any particular Holder of a Registered Security
shall affect the sufficiency of such notice with respect to other Holders of
Registered Securities or the sufficiency of any notice by publication to Holders
of Unregistered Securities given as provided above.
In case, by reason of the suspension of publication of any Authorized
Newspaper or by reason of any other cause, it shall be impossible or
impracticable to make publication of any notice to Holders of Unregistered
Securities in an Authorized Newspaper or Authorized Newspapers as required by
this Indenture or by the Unregistered Securities, then such method of
publication or notification to Holders of Unregistered Securities as shall be
made in a manner satisfactory to the Trustee shall constitute a sufficient
publication of such notice. Neither the failure to give notice by publication to
Holders of Unregistered Securities as provided above nor any defect in any
notice as published shall affect the sufficiency of any notice mailed to Holders
of Registered Securities. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
SECTION 11.05. Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the Issuer
to the Trustee to take any action under any of the provisions of this Indenture,
the Issuer shall furnish to the Trustee an Officers' Certificate stating that
all conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
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Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (a) a statement that the person
making such certificate or opinion has read such covenant or condition, (b) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based, (c) a statement that, in the opinion of such person, he or she has
made such examination or investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such covenant or condition has
been complied with and (d) a statement as to whether or not, in the opinion of
such person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the certificate
or opinion or representations with respect to the matters upon which his or her
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, information with respect to which is in the possession of
the Issuer, upon the certificate, statement or opinion of or representations by
an officer or officers of the Issuer, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his or her certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his or her certificate, statement
or opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
SECTION 11.06. Payments Due on Saturdays, Sundays and Holidays. If the
date of maturity of interest on or principal of the Securities of any series or
any Coupons appertaining thereto or the date fixed for redemption or repayment
of any such Security or Coupon, or the last day on which a Holder has the right
to
66
convert any Security, shall not be a Business Day, then payment of interest or
principal, or any conversion, need not be made on such date, but may be made on
the next succeeding Business Day with the same force and effect as if made on
the date of maturity or the date fixed for redemption or on such last day for
conversion, and no interest shall accrue for the period after such date.
SECTION 11.07. Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with another provision included in this Indenture
by operation of Sections 310 to 317, inclusive, of the Trust Indenture Act of
1939, such incorporated provision shall control.
SECTION 11.08. New York Law to Govern. This Indenture and each Security
and Coupon shall be deemed to be a contract under the laws of the State of New
York, and for all purposes shall be construed in accordance with the laws of
such State, except as may otherwise be required by mandatory provisions of law.
SECTION 11.09. Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 11.10. Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
SECTION 11.11. Securities in a Foreign Currency or in euro. Unless
otherwise specified in an Officers' Certificate delivered pursuant to Section
2.03 of this Indenture with respect to a particular series of Securities,
whenever for purposes of this Indenture any action may be taken by the Holders
of a specified percentage in aggregate principal amount of Securities of all
series or all series affected by a particular action at the time Outstanding
and, at such time, there are Outstanding Securities of any series which are
denominated in a coin or currency other than Dollars (including euro), then the
principal amount of Securities of such series which shall be deemed to be
Outstanding for the purpose of taking such action shall be that amount of
Dollars that could be obtained for such amount at the Market Exchange Rate. For
purposes of this Section 11.11, Market Exchange Rate shall mean the noon Dollar
buying rate for that currency for cable transfers quoted in The City of New York
as certified for customs purposes by the Federal Reserve Bank of New York. If
such Market Exchange Rate is not available for any reason with respect to such
currency, the Trustee shall use, in its sole discretion and without liability on
its part, such quotation of the Federal Reserve Bank of New York as of the most
recent available date, or quotations or
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rates of exchange from one or more major banks in The City of New York or in the
country of issue of the currency in question, which for purposes of the euro
shall be Brussels, Belgium, or such other quotations or rates of exchange as the
Trustee shall deem appropriate. The provisions of this paragraph shall apply in
determining the equivalent principal amount in respect of Securities of a series
denominated in a currency other than Dollars in connection with any action taken
by Holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and irrevocably binding upon the Issuer
and all Holders.
SECTION 11.12. Judgment Currency. The Issuer agrees, to the fullest
extent that it may effectively do so under applicable law, that (a) if for the
purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the principal of or interest on the Securities of any series
(the "Required Currency") into a currency in which a judgment will be rendered
(the "Judgment Currency"), the rate of exchange used shall be the rate at which
in accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the New
York Banking Day next preceding that on which final unappealable judgment is
given and (b) its obligations under this Indenture to make payments in the
Required Currency (i) shall not be discharged or satisfied by any tender, or any
recovery pursuant to any judgment (whether or not entered in accordance with
subsection (a)), in any currency other than the Required Currency, except to the
extent that such tender or recovery shall result in the actual receipt, by the
payee, of the full amount of the Required Currency expressed to be payable in
respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required
Currency the amount, if any, by which such actual receipt shall fall short of
the full amount of the Required Currency so expressed to be payable and (iii)
shall not be affected by judgment being obtained for any other sum due under
this Indenture. For purposes of the foregoing, "New York Banking Day" means any
day except a Saturday, Sunday or legal holiday in The City of New York or a day
on which banking institutions in The City of New York are authorized or required
by law or executive order to close.
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ARTICLE 12
SUBORDINATION OF SECURITIES
SECTION 12.01. Agreement of Subordination. The Issuer covenants and
agrees, and each holder of Securities issued hereunder by his acceptance thereof
likewise covenants and agrees, that all Securities shall be issued subject to
the provisions of this Article 12; and each Securityholder, whether upon
original issue or upon transfer or assignment thereof, accepts and agrees to be
bound by such provisions.
The payment of the principal of, premium, if any, and interest on all
Securities issued hereunder shall, to the extent and in the manner hereinafter
set forth, be subordinated and subject in right of payment to the prior payment
in full of all Senior Indebtedness, whether outstanding at the date of this
Indenture or thereafter incurred.
No provision of this Article 12 shall prevent the occurrence of any
default or Event of Default hereunder.
SECTION 12.02. Payments to Securityholders. In the event and during the
continuation of any default in the payment of principal, premium, interest or
any other payment due on any Senior Indebtedness continuing beyond the period of
grace, if any, specified in the instrument or lease evidencing such Senior
Indebtedness, then, unless and until such default shall have been cured or
waived or shall have ceased to exist, no payment shall be made by the Issuer
with respect to the principal of, or premium, if any, or interest on the
Securities, except sinking fund payments made by the acquisition of Securities
under Section 13.06 prior to the happening of such default and payments made
pursuant to Article 10 hereof from monies deposited with the Trustee pursuant
thereto prior to the happening of such default.
Upon any payment by the Issuer, or distribution of assets of the Issuer
of any kind or character, whether in cash, property or securities, to creditors
upon any dissolution or winding-up or liquidation or reorganization of the
Issuer, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due or to become due upon all
Senior Indebtedness shall first be paid in full, or payment thereof provided for
in money in accordance with its terms, before any payment is made on account of
the principal (and premium, if any) or interest on the Securities (except
payments made pursuant to Article 10 hereof from monies deposited with the
Trustee pursuant thereto prior to the happening of such dissolution, winding-up,
liquidation or reorganization); and upon any such dissolution or winding-up or
liquidation or reorganization any payment by the Issuer, or distribution of
assets of the Issuer of any kind or
69
character, whether in cash, property or securities, to which the holders of the
Securities or the Trustee would be entitled, except for the provisions of this
Article 12, shall (except as aforesaid) be paid by the Issuer or by any
receiver, trustee in bankruptcy, liquidating trustee, agent or other Person
making such payment or distribution, or by the holders of the Securities or by
the Trustee under this Indenture if received by them or it, directly to the
holders of Senior Indebtedness (pro rata to such holders on the basis of the
respective amounts of Senior Indebtedness held by such holders, as calculated by
the Issuer) or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing any
Senior Indebtedness may have been issued, as their respective interests may
appear, to the extent necessary to pay all Senior Indebtedness in full, in money
or money's worth, after giving effect to any concurrent payment or distribution
to or for the holders of Senior Indebtedness, before any payment or distribution
is made to the holders of the Securities or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Issuer of any kind or character, whether in cash,
property or securities, prohibited by the foregoing, shall be received by the
Trustee or the holders of the Securities before all Senior Indebtedness is paid
in full, or provision is made for such payment in money in accordance with its
terms, such payment or distribution shall be held in trust for the benefit of
and shall be paid over or delivered to the holders of Senior Indebtedness or
their representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any Senior Indebtedness
may have been issued, as their respective interests may appear, as calculated by
the Issuer, for application to the payment of all Senior Indebtedness remaining
unpaid to the extent necessary to pay all Senior Indebtedness in full in money
in accordance with its terms, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness.
For purposes of this Article 12, the words, "cash, property or
securities" shall not be deemed to include shares of stock of the Issuer as
reorganized or readjusted, or securities of the Issuer or any other corporation
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article 12 with respect
to the Securities to the payment of all Senior Indebtedness which may at the
time be outstanding; provided that (i) the Senior Indebtedness is assumed by the
new corporation, if any, resulting from any such reorganization or readjustment,
and (ii) the rights of the holders of the Senior Indebtedness (other than
leases) and of leases which are assumed are not, without the consent of such
holders, altered by such reorganization or readjustment. The consolidation of
the Issuer with, or the merger of the Issuer into, another corporation or the
liquidation or dissolution of
70
the Issuer following the conveyance or transfer of its property as an entirety,
or substantially as an entirety, to another corporation upon the terms and
conditions provided for in Article 9 hereof shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section 12.02
if such other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in Article 9 hereof.
Nothing in this Section 12.02 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.06.
SECTION 12.03. Subrogation of Securities. Subject to the payment in
full of all Senior Indebtedness, the rights of the holders of the Securities
shall be subrogated to the rights of the holders of Senior Indebtedness to
receive payments or distributions of cash, property or securities of the Issuer
applicable to the Senior Indebtedness until the principal of (and premium, if
any) and interest on the Securities shall be paid in full; and, for the purposes
of such subrogation, no payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the holders of the
Securities or the Trustee would be entitled except for the provisions of this
Article 12, and no payment over pursuant to the provisions of this Article 12,
to or for the benefit of the holders of Senior Indebtedness by holders of the
Securities or the Trustee, shall, as between the Issuer, its creditors other
than holders of Senior Indebtedness, and the holders of the Securities, be
deemed to be a payment by the Issuer to or on account of the Senior
Indebtedness. It is understood that the provisions of this Article 12 are and
are intended solely for the purpose of defining the relative rights of the
holders of the Securities, on the one hand, and the holders of the Senior
Indebtedness, on the other hand.
Nothing contained in this Article 12 or elsewhere in this Indenture or
in the Securities is intended to or shall impair, as between the Issuer, its
creditors other than the holders of Senior Indebtedness, and the holders of the
Securities, the obligation of the Issuer, which is absolute and unconditional,
to pay to the holders of the Securities the principal of (and premium, if any)
and interest on the Securities as and when the same shall become due and payable
in accordance with their terms, or is intended to or shall affect the relative
rights of the holders of the Securities and creditors of the Issuer other than
the holders of the Senior Indebtedness, nor shall anything herein or therein
prevent the Trustee or the holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article 12 of the holders of Senior
Indebtedness in respect of cash, property or securities of the Issuer received
upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Issuer referred to in
this Article 12, the Trustee, subject to the provisions of Section 6.01, and the
holders
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of the Securities shall be entitled to rely upon any order or decree made by any
court of competent jurisdiction in which such dissolution, winding-up,
liquidation or reorganization proceedings are pending, or a certificate of the
receiver, trustee in bankruptcy, liquidating trustee, agent or other Person
making such payment or distribution, delivered to the Trustee or to the holders
of the Securities, for the purpose of ascertaining the Persons entitled to
participate in such distribution, the holders of the Senior Indebtedness and
other indebtedness of the Issuer, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 12.
SECTION 12.04. Authorization by Securityholders. Each holder of a
Security by his acceptance thereof authorizes and directs the Trustee in his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article 12 and appoints the Trustee his
attorney-in-fact for any and all such purposes.
SECTION 12.05. Notice to Trustee. The Issuer shall give prompt written
notice to a Responsible Officer of the Trustee of any fact known to the Issuer
which would prohibit the making of any payment of monies to or by the Trustee in
respect of the Securities pursuant to the provisions of this Article 12.
Notwithstanding the provisions of this Article 12 or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment of monies to or by the
Trustee in respect of the Securities pursuant to the provisions of this Article
12, unless and until a Responsible Officer of the Trustee shall have received
written notice thereof at the Corporate Trust Office of the Trustee from the
Issuer or a holder or holders of Senior Indebtedness or from any trustee
therefor; and before the receipt of any such written notice, the Trustee,
subject to the provisions of Section 6.01, shall be entitled in all respects to
assume that no such facts exist; provided that if on a date not fewer than three
Business Days prior to the date upon which by the terms hereof any such monies
may become payable for any purpose (including, without limitation, the payment
of the principal of (or premium, if any) or interest on any Security) the
Trustee shall not have received, with respect to such monies, the notice
provided for in this Section 12.05, then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such monies and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it on or after such prior date.
Notwithstanding anything to the contrary hereinbefore set forth,
nothing shall prevent any payment by the Issuer or the Trustee to the
Securityholders of monies in connection with a redemption of Securities if (i)
notice of such redemption has been given pursuant to Article 13 or Section 10.01
hereof prior to
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the receipt by the Trustee of written notice as aforesaid, and (ii) such notice
of redemption is given not earlier than 60 days before the redemption date.
The Trustee conclusively shall be entitled to rely on the delivery to
it of a written notice by a Person representing himself to be a holder of Senior
Indebtedness (or a trustee on behalf of such holder) to establish that such
notice has been given by a holder of Senior Indebtedness or a trustee on behalf
of any such holder or holders. In the event that the Trustee determines in good
faith that further evidence is required with respect to the right of any Person
as a holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Article 12, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article 12, and if such
evidence is not furnished the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 12.06. Trustee's Relation to Senior Indebtedness. The Trustee
in its individual capacity shall be entitled to all the rights set forth in this
Article 12 in respect of any Senior Indebtedness at any time held by it, to the
same extent as any other holder of Senior Indebtedness and nothing elsewhere in
this Indenture shall deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article 12, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness and the Trustee shall
not be liable to any holder of Senior Indebtedness if it shall pay over or
deliver to holders of Securities, the Issuer or any other Person money or assets
to which any holder of Senior Indebtedness shall be entitled by virtue of this
Article 12 or otherwise.
SECTION 12.07. No Impairment of Subordination. No right of any present
or future holder of any Senior Indebtedness to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Issuer or by any act or failure to act, in
good faith, by any such holder, or by any noncompliance by the Issuer with the
terms, provisions and covenants of this Indenture, regardless of any knowledge
thereof which any such holder may have or otherwise be charged with.
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SECTION 12.08. Rights of Trustee. Nothing in this Article 12 shall
apply to claims of or payments to, the Trustee pursuant to Section 6.06 or
10.05.
ARTICLE 13
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 13.01. Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their maturity or to any sinking fund for the retirement of Securities of a
series, except as otherwise specified, as contemplated by Section 2.03 for
Securities of such series.
SECTION 13.02. Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Registered Securities of any series to be redeemed
as a whole or in part at the option of the Issuer shall be given by mailing
notice of such redemption by first class mail, postage prepaid, at least 30 days
and not more than 60 days prior to the date fixed for redemption to such Holders
of Securities of such series at their last addresses as they shall appear upon
the registry books. Notice of redemption to the Holders of Unregistered
Securities to be redeemed as a whole or in part, who have filed their names and
addresses with the Trustee pursuant to Section 4.01, shall be given by mailing
notice of such redemption, by first class mail, postage prepaid, at least 30
days and not more than 60 prior to the date fixed for redemption, to such
Holders at such addresses as were so furnished to the Trustee (and, in the case
of any such notice given by the Issuer, the Trustee shall make such information
available to the Issuer for such purpose). Notice of redemption to all other
Holders of Unregistered Securities shall be published in an Authorized Newspaper
in the Borough of Manhattan, The City of New York, and in an Authorized
Newspaper in London (and, if required by Section 3.08, in an Authorized
Newspaper in Luxembourg), in each case, once in each of three successive
calendar weeks, the first publication to be not less than 30 nor more than 60
days prior to the date fixed for redemption. Any notice which is given in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not the Holder receives the notice. Failure to give notice or any
defect in the notice to the Holder of any Security of a series designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the redemption price, the place or
places of payment, that payment will be made upon presentation and surrender of
such Securities and,
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in the case of Securities with Coupons attached thereto, of all Coupons
appertaining thereto maturing after the date fixed for redemption, that such
redemption is pursuant to the mandatory or optional sinking fund, or both, if
such be the case, that interest accrued to the date fixed for redemption will be
paid as specified in such notice and that on and after said date interest
thereon or on the portions thereof to be redeemed will cease to accrue and shall
also specify, if applicable, the Conversion Price then in effect and the date on
which the right to convert such Securities or the portions thereof to be
redeemed will expire. In case any Security of a series is to be redeemed in part
only, the notice of redemption shall state the portion of the principal amount
thereof to be redeemed and shall state that on and after the date fixed for
redemption, upon surrender of such Security, a new Security or Securities of
such series in principal amount equal to the unredeemed portion thereof will be
issued.
The notice of redemption of Securities of any series to be redeemed at
the option of the Issuer shall be given by the Issuer or, at the Issuer's
request, by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of redemption
given as provided in this Section, the Issuer will deposit with the Trustee or
with one or more paying agents (or, if the Issuer is acting as its own paying
agent, set aside, segregate and hold in trust as provided in Section 3.04) an
amount of money sufficient to redeem on the redemption date all the Securities
of such series so called for redemption (other than those theretofore
surrendered for conversion into Common Stock) at the appropriate redemption
price, together with accrued interest to the date fixed for redemption. If any
Security called for redemption is converted pursuant hereto, any money deposited
with the Trustee or any paying agent or so segregated and held in trust for the
redemption of such Security shall be paid to the Issuer upon the Issuer's
request, or, if then held by the Issuer, shall be discharged from such trust.
The Issuer will deliver to the Trustee at least 70 days prior to the date fixed
for redemption (unless a shorter time period shall be acceptable to the Trustee)
an Officers' Certificate (which need not comply with Section 11.05) stating the
aggregate principal amount of Securities to be redeemed. In case of a redemption
at the election of the Issuer prior to the expiration of any restriction on such
redemption, the Issuer shall deliver to the Trustee, prior to the giving of any
notice of redemption to Holders pursuant to this Section, an Officers'
Certificate stating that such restriction has been complied with.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such Series to be redeemed. Securities may be redeemed in part in
multiples equal to the minimum authorized denomination for Securities of such
series or
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any multiple thereof. The Trustee shall promptly notify the Issuer in writing of
the Securities of such series selected for redemption and, in the case of any
Securities of such series selected for partial redemption, the principal amount
thereof to be redeemed. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities of
any series shall relate, in the case of any Security redeemed or to be redeemed
only in part, to the portion of the principal amount of such Security which has
been or is to be redeemed. If any Security selected for partial redemption is
surrendered for conversion after such selection, the converted portion of such
Security shall be deemed (so far as may be) to be the portion selected for
redemption. Upon any redemption of less than all the Securities, the Issuer and
the Trustee may treat as Outstanding Securities surrendered for conversion
during the period of 15 days next preceding the mailing of a notice of
redemption, and need not treat as Outstanding any Security authenticated and
delivered during such period in exchange for the unconverted portion of any
Security converted in part during such period.
SECTION 13.03. Conversion Arrangement on Call for Redemption. In
connection with any redemption of Securities, the Issuer may arrange for the
purchase and conversion in accordance with Article 14 of any Securities called
for redemption by an agreement with one or more investment bankers or other
purchasers to purchase such Securities by paying to the paying agent, in trust
for the Securityholders, on or before the close of business on the redemption
date, an amount that, together with any amounts deposited with the paying agent
by the Issuer for the redemption of such Securities, is not less than the
redemption price of such Securities together with interest to and including the
redemption date. Notwithstanding anything to the contrary contained in this
Article 13, the obligation of the Issuer to pay the redemption price of such
Securities shall be deemed to be satisfied and discharged to the extent such
amount is so paid by such purchasers. If such an agreement is entered into, any
Securities not duly surrendered for conversion in accordance with Article 14 by
the Holders thereof may, at the option of the Issuer, be deemed, to the fullest
extent permitted by law, acquired by such purchasers from such Holders and
(notwithstanding anything to the contrary contained in Article 14) surrendered
by such purchasers for conversion, all as of immediately prior to the close of
business on the redemption date, subject to payment of the above amount as
aforesaid. The paying agent shall hold and pay to the Holders whose Securities
are selected for redemption any such amount paid to it in the same manner as it
would moneys deposited with it by the Issuer for the redemption of Securities.
Without the paying agent's and the Trustee's prior written consent, no
arrangement between the Issuer and such purchasers for the purchase and
conversion of any Securities shall increase or otherwise affect any of the
powers, duties, responsibilities or obligations of the paying agent or the
Trustee as set forth in this Indenture, and the Issuer agrees to
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indemnify the paying agent and the Trustee from, and hold them harmless against,
any loss, liability or expense arising out of or in connection with any such
arrangement for the purchase and conversion of any Securities between the Issuer
and such purchasers, including the costs and expenses incurred by the paying
agent or the Trustee in the defense of any claim or liability arising out of or
in connection with the exercise or performance of any of its powers, duties,
responsibilities or obligations under this Indenture.
SECTION 13.04. Payment of Securities Called for Redemption. If notice
of redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after said
date (unless the Issuer shall default in the payment of such Securities at the
redemption price, together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue, and the unmatured Coupons, if any, appertaining thereto shall be void,
and, except as provided in Sections 6.05 and 10.04, such Securities shall cease
from and after the date fixed for redemption to be convertible into Common
Stock, if applicable, and to be entitled to any benefit or security under this
Indenture, and the Holders thereof shall have no right in respect of such
Securities except the right to receive the redemption price thereof and unpaid
interest to the date fixed for redemption. On presentation and surrender of such
Securities at a place of payment specified in said notice, together with all
Coupons, if any, appertaining thereto maturing after the date fixed for
redemption, said Securities or the specified portions thereof shall be paid and
redeemed by the Issuer at the applicable redemption price, together with
interest accrued thereon to the date fixed for redemption; provided, that
payment of interest becoming due on or prior to the date fixed for redemption
shall be payable in the case of Securities with Coupons attached thereto, to the
Holders of the Coupons for such interest upon surrender thereof, and in the case
of Registered Securities, to the Holders of such Registered Securities
registered as such on the relevant record date subject to the terms and
provisions of Sections 2.03 and 2.07 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security and, if applicable, such Security shall remain
convertible into Common Stock until the principal of such Security shall have
been paid or duly provided for.
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If any Security with Coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant Coupons maturing after the
date fixed for redemption, the surrender of such missing Coupon or Coupons may
be waived by the Issuer and the Trustee if there be furnished to each of them
such security or indemnity as they may require to save each of them harmless.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Issuer, a new Security or
Securities of such series, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 13.05. Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in an Officers' Certificate delivered to the Trustee at least 40 days
prior to the last date on which notice of redemption may be given as being owned
of record and beneficially by, and not pledged or hypothecated by either (a) the
Issuer or (b) an entity specifically identified in such written statement as
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer.
SECTION 13.06. Mandatory and Optional Sinking Funds. The minimum amount
of any sinking fund payment provided for by the terms of the Securities of any
series is herein referred to as a "mandatory sinking fund payment", and any
payment in excess of such minimum amount provided for by the terms of the
Securities of any series is herein referred to as an "optional sinking fund
payment". The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Issuer may at its option
(a) deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant
to Section 2.10 and, if applicable, receive credit for Securities (not
previously so credited) converted into Common Stock and so delivered to the
Trustee for cancellation, (b) receive credit for optional sinking fund payments
(not previously so credited) made pursuant to this Section, or (c) receive
credit for Securities of such series (not previously so credited) redeemed by
the Issuer through any optional redemption provision contained in the terms of
such series. Securities so delivered or credited shall be
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received or credited by the Trustee at the sinking fund redemption price
specified in such Securities.
On or before the 60th day next preceding each sinking fund payment date
for any series, the Issuer will deliver to the Trustee an Officers' Certificate
(which need not contain the statements required by Section 11.05) (a) specifying
the portion of the mandatory sinking fund payment to be satisfied by payment of
cash and the portion to be satisfied by credit of Securities of such series and
the basis for such credit, (b) stating that none of the Securities of such
series has theretofore been so credited, (c) stating that no defaults in the
payment of interest or Events of Default with respect to such series have
occurred (which have not been waived or cured) and are continuing and (d)
stating whether or not the Issuer intends to exercise its right to make an
optional sinking fund payment with respect to such series and, if so, specifying
the amount of such optional sinking fund payment which the Issuer intends to pay
on or before the next succeeding sinking fund payment date. Any Securities of
such series to be credited and required to be delivered to the Trustee in order
for the Issuer to be entitled to credit therefor as aforesaid which have not
theretofore been delivered to the Trustee shall be delivered for cancellation
pursuant to Section 2.10 to the Trustee with such Officers' Certificate (or
reasonably promptly thereafter if acceptable to the Trustee). Such Officers'
Certificate shall be irrevocable and upon its receipt by the Trustee the Issuer
shall become unconditionally obligated to make all the cash payments or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. Failure of the Issuer, on or before any such 60th day, to deliver
such Officers' Certificate and Securities specified in this paragraph, if any,
shall not constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Issuer (i) that the mandatory sinking fund payment
for such series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of such
series in respect thereof and (ii) that the Issuer will make no optional sinking
fund payment with respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both)
to be made in cash on the next succeeding sinking fund payment date plus any
unused balance of any preceding sinking fund payments made in cash shall exceed
$50,000 (or the equivalent thereof in any Foreign Currency or in euro or a
lesser sum in Dollars or in any Foreign Currency or in euro if the Issuer shall
so request) with respect to the Securities of any particular series, such cash
shall be applied on the next succeeding sinking fund payment date to the
redemption of Securities of such series at the sinking fund redemption price
together with accrued interest to the date fixed for redemption. If such amount
shall be $50,000 (or the equivalent thereof in any Foreign Currency or euro) or
less and the Issuer makes no such request then it shall be carried over until a
sum in excess of
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$50,000 (or the equivalent thereof in any Foreign Currency or euro) is
available. The Trustee shall select, in the manner provided in Section 13.02,
for redemption on such sinking fund payment date a sufficient principal amount
of Securities of such series to absorb said cash, as nearly as may be, and shall
(if requested in writing by the Issuer) inform the Issuer of the serial numbers
of the Securities of such series (or portions thereof) so selected. Securities
shall be excluded from eligibility for redemption under this Section if they are
identified by registration and certificate number in an Officers' Certificate
delivered to the Trustee at least 60 days prior to the sinking fund payment date
as being owned of record and beneficially by, and not pledged or hypothecated by
either (a) the Issuer or (b) an entity specifically identified in such Officers'
Certificate as directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer. The Trustee, in the name and
at the expense of the Issuer (or the Issuer, if it shall so request the Trustee
in writing), shall cause notice of redemption of the Securities of such series
to be given in substantially the manner provided in Section 13.02 (and with the
effect provided in Section 13.04) for the redemption of Securities of such
series in part at the option of the Issuer. The amount of any sinking fund
payments not so applied or allocated to the redemption of Securities of such
series shall be added to the next cash sinking fund payment for such series and,
together with such payment, shall be applied in accordance with the provisions
of this Section. Any and all sinking fund moneys held on the stated maturity
date of the Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such series, shall be applied, together with other moneys, if
necessary, sufficient for the purpose, to the payment of the principal of, and
interest on, the Securities of such series at maturity. The Issuer's obligation
to make a mandatory or optional sinking fund payment shall automatically be
reduced by an amount equal to the sinking fund redemption price allocable to any
Securities or portions thereof called for redemption pursuant to the preceding
paragraph on any sinking fund payment date and converted into Common Stock;
provided, that, if the Trustee is not the conversion agent for the Securities,
the Issuer or such conversion agent shall give the Trustee written notice prior
to the date fixed for redemption of the principal amount of Securities or
portions thereof so converted.
On or before each sinking fund payment date, the Issuer shall pay to
the Trustee in cash or shall otherwise provide for the payment of all interest
accrued to the date fixed for redemption on Securities to be redeemed on the
next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of
a series with sinking fund moneys or give any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in
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payment of interest on such Securities or of any Event of Default except that,
where the mailing of notice of redemption of any Securities shall theretofore
have been made, the Trustee shall redeem or cause to be redeemed such
Securities, provided that it shall have received from the Issuer a sum
sufficient for such redemption. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such default or Event of Default shall
occur, and any moneys thereafter paid into the sinking fund, shall, during the
continuance of such default or Event of Default, be deemed to have been
collected under Article 5 and held for the payment of all such Securities. In
case such Event of Default shall have been waived as provided in Section 5.10,
or the default cured on or before the 60th day preceding the sinking fund
payment date in any year, such moneys shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this Section to the
redemption of such Securities.
ARTICLE 14
CONVERSION OF SECURITIES
SECTION 14.01. Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are convertible into
Common Stock, except as otherwise specified, as contemplated by Section 2.03 for
Securities of such series.
SECTION 14.02. Exercise of Conversion Privilege. In order to exercise
the conversion privilege, the Holder of any Security to be converted shall
surrender such Security, together with all unmatured Coupons, to the Issuer at
any time during usual business hours at its office or agency maintained for the
purpose as provided in this Indenture, accompanied by a fully executed written
notice, in substantially the form set forth on the reverse of the Security, that
the Holder elects to convert such Security or a stated portion thereof
constituting a multiple of the minimum authorized denomination thereof, and, if
such Security is surrendered for conversion during the period between the close
of business on any record date for such Security and the opening of business on
the related interest payment date (unless such Security shall have been called
for redemption on a redemption date within such period or on such interest
payment date), accompanied also by payment of an amount equal to the interest
payable on such interest payment date on the portion of the principal amount of
the Security being surrendered for conversion. A Holder of any Security on a
record date for such Security who converts such Security on the related interest
payment date will receive the interest payable on such Security, and such
converting Holder need not include a payment for any such interest upon
surrender of such Security for conversion. Such notice shall also state the name
or names (with address) in
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which the certificate or certificates for shares of Common Stock shall be
issued. Securities and any appurtenant Coupons surrendered for conversion shall
(if so required by the Issuer or the Trustee) be duly endorsed by, or be
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Issuer and the Trustee duly executed by, the Holder or his
or her attorney duly authorized in writing. As promptly as practicable after the
receipt of such notice and the surrender of such Security and any appurtenant
Coupons as aforesaid, the Issuer shall, subject to the provisions of Section
14.07, issue and deliver at such office or agency to such Holder, or on his or
her written order, a certificate or certificates for the number of full shares
of Common Stock issuable on such conversion of Securities in accordance with the
provisions of this Article and cash, as provided in Section 14.03, in respect of
any fraction of a share of Common Stock otherwise issuable upon such conversion.
Such conversion shall be deemed to have been effected immediately prior to the
close of business on the date (herein called the "Date of Conversion") on which
such notice shall have been received by the Issuer and such Security and any
appurtenant Coupons shall have been surrendered as aforesaid, and the Person or
Persons in whose name or names any certificate or certificates for shares of
Common Stock shall be issuable upon such conversion shall be deemed to have
become on the Date of Conversion the holder or holders of record of the shares
represented thereby; provided, however, that any such surrender on any date when
the stock transfer books of the Issuer shall be closed shall constitute the
Person or Persons in whose name or names the certificate or certificates for
such shares are to be issued as the recordholder or holders thereof for all
purposes at the opening of business on the next succeeding day on which such
stock transfer books are open but such conversion shall nevertheless be at the
Conversion Price in effect at the close of business on the date when such
Security and any appurtenant Coupons shall have been so surrendered with the
conversion notice. In the case of conversion of a portion, but less than all, of
a Security, the Issuer shall execute, and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Issuer, a Security or
Securities in the aggregate principal amount of the unconverted portion of the
Security surrendered. Except as otherwise expressly provided in this Indenture,
no payment or adjustment shall be made for interest accrued on any Security (or
portion thereof) converted or for dividends or distributions on any Common Stock
issued upon conversion of any Security; provided, however, that, in the case of
any Securities which are converted after the close of business on a relevant
record date and on or prior to the next succeeding interest payment date,
installments of interest which are due and payable on the next succeeding
interest payment date shall be payable on such interest payment date
notwithstanding such conversion (unless such Security shall have been called for
redemption on a redemption date after the close of business on such record date
and prior to the opening of business on such interest payment date) and such
interest (whether or not punctually paid or duly provided for) shall be paid to
the
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Holder of such Securities registered as such at the close of business on the
relevant record date according to their terms and the provisions of Section
2.07.
If any Security surrendered for conversion shall not be accompanied by
all appurtenant Coupons maturing after the Date of Conversion, such Security may
be converted after payment in cash by the Holder thereof in an amount equal to
the face amount of all such missing Coupons, or the surrender of such missing
Coupons may be waived by the Issuer and any conversion agent if there be
furnished to the Issuer and any such conversion agent such security or indemnity
as they may require to save each of them harmless.
SECTION 14.03. Fractional Interests. No fractions of shares or scrip
representing fractions of shares shall be issued upon conversion of Securities.
If more than one Security shall be surrendered for conversion at one time by the
same Holder, the number of full shares which shall be issuable upon conversion
thereof shall be computed on the basis of the aggregate principal amount of the
Securities so surrendered. If any fraction of a share of Common Stock would,
except for the provisions of this Section, be issuable on the conversion of any
Security or Securities, the Issuer shall make payment in lieu thereof in an
amount of Dollars equal to the value of such fraction computed on the basis of
the last sale price of the Common Stock as reported on the Composite Tape for
New York Stock Exchange - Listed Stocks (or if not listed or admitted to trading
on such Exchange, then on the principal national securities exchange on which
the Common Stock is listed or admitted to trading, or, if not listed or admitted
to trading on any national securities exchange, then as reported by the National
Association of Securities Dealers, Inc. through NASDAQ or a similar organization
if NASDAQ is no longer reporting information) on the last trading day prior to
the Date of Conversion or, if no such sale takes place on such day, the last
sale price for such day shall be the average of the closing bid and asked prices
regular way on the New York Stock Exchange (or if not listed or admitted to
trading on such Exchange, on the principal national securities exchange on which
the Common Stock is listed or admitted to trading, or if not listed or admitted
to trading on any national securities exchange, the average of the highest bid
and lowest asked prices as reported by the National Association of Securities
Dealers, Inc. through NASDAQ or a similar organization if NASDAQ is no longer
reporting information) (any such last sale price being hereinafter referred to
as the "Last Sale Price"). If on such trading day the Common Stock is not quoted
by any such organization, the fair value of such Common Stock on such day, as
determined by the Board of Directors, shall be used. For the purpose of this
Section 14.03, the term "trading day" shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday, other than any day on which securities are not
traded on such exchange or in such market.
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SECTION 14.04. Adjustment of Conversion Price. The Conversion Price
shall be subject to adjustment from time to time as follows:
(a) In case the Issuer shall (i) pay a dividend or make a distribution
on Common Stock in shares of Common Stock, (ii) subdivide its outstanding shares
of Common Stock into a greater number of shares or (iii) combine its outstanding
shares of Common Stock into a smaller number of shares, the Conversion Price in
effect immediately prior to such action shall be adjusted as provided below so
that the Holder of any Security thereafter surrendered for conversion shall be
entitled to receive the number of shares of Common Stock which he or she would
have or been entitled to receive immediately following such action had such
Security been converted immediately prior thereto. An adjustment made pursuant
to this subsection (a) shall become effective immediately, except as provided in
subsection (e) below, after the record date in the case of a dividend or
distribution and shall become effective immediately after the effective date in
the case of a subdivision or combination.
(b) In case the Issuer shall issue rights, warrants or options to all
holders of Common Stock entitling them (for a period not exceeding 45 days from
the date of such issuance) to subscribe for or purchase shares of Common Stock
at a price per share less than the current market price per share (as determined
pursuant to subsection (d) below) of the Common Stock on the record date
mentioned below, the Conversion Price shall be adjusted to a price, computed to
the nearest cent, so that the same shall equal the price determined by
multiplying:
(i) the Conversion Price in effect immediately prior to the date
of issuance of such rights, warrants or options by a fraction, of
which
(ii) the numerator shall be (A) the number of shares of Common
Stock outstanding on the date of issuance of such rights, warrants or
options immediately prior to such issuance, plus (B) the number of
shares which the aggregate offering price of the total number of
shares so offered for subscription or purchase would purchase at such
current market price (determined by multiplying such total number of
shares by the exercise price of such rights, warrants or options and
dividing the product so obtained by such current market price), and of
which
(iii) the denominator shall be (A) the number of shares of Common
Stock outstanding on the date of issuance of such rights, warrants or
options, immediately prior to such issuance, plus (B) the number of
additional shares of Common Stock which are so offered for
subscription or purchase.
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Such adjustment shall become effective immediately, except as provided
in subsection (e) below, after the record date for the determination of holders
entitled to receive such rights, warrants or options.
(c) In case the Issuer shall distribute to substantially all holders
of Common Stock evidences of indebtedness, equity securities (including equity
interests in the Issuer's Subsidiaries) other than Common Stock or other assets
(other than cash dividends paid out of earned surplus of the Issuer or, if there
shall be no earned surplus, out of net profits for the fiscal year in which the
dividend is made and/or the preceding fiscal year), or shall distribute to
substantially all holders of Common Stock rights, warrants or options to
subscribe to securities (other than those referred to in subsection (b) above),
then in each such case the Conversion Price shall be adjusted so that the same
shall equal the price determined by multiplying the Conversion Price in effect
immediately prior to the date of such distribution by a fraction of which the
numerator shall be the current market price per share (determined as provided in
subsection (d) below) of the Common Stock on the record date mentioned below
less the then fair market value (as determined by the Board of Directors, whose
determination shall be conclusive evidence of such fair market value, and
described in a Board Resolution filed with the Trustee) of the portion of the
assets, evidences of indebtedness and equity securities so distributed or of
such subscription rights, warrants or options applicable to one share of Common
Stock, and of which the denominator shall be such current market price per share
of the Common Stock. Such adjustment shall become effective immediately, except
as provided in subsection (e) below, after the record date for the determination
of stockholders entitled to receive such distribution.
(d) For the purpose of any computation under subsections (b) and (c)
above, the current market price per share of Common Stock on any date shall be
deemed to be the average of the Last Sale Prices of a share of Common Stock for
the five consecutive trading days commencing not more than 20 trading days
before, and ending not later than, the earliest of the date in question and the
date before the "ex" date with respect to the issuance or distribution requiring
such computation. If on any such trading day the Common Stock is not quoted by
any organization referred to in the definition of Last Sale Price in Section
14.03, the fair value of the Common Stock on such day, as determined by the
Board of Directors, shall be used. For purposes of this paragraph, the term
"'ex' date", when used with respect to any issuance or distribution, means the
first date on which the Common Stock trades regular way on the principal
national securities exchange on which the Common Stock is listed or admitted to
trading (or, if not so listed or admitted, on NASDAQ or a similar organization
if NASDAQ is no longer reporting trading information) without the right to
receive such issuance or distribution.
85
(e) In any case in which this Section shall require that an adjustment
be made immediately following a record date, the Issuer may elect to defer the
effectiveness of such adjustment (but in no event until a date later than the
effective time of the event giving rise to such adjustment), in which case the
Issuer shall, with respect to any Security converted after such record date and
before such adjustment shall have become effective (i) defer making any cash
payment pursuant to Section 14.03 or issuing to the Holder of such Security the
number of shares of Common Stock and other capital stock of the Issuer issuable
upon such conversion in excess of the number of shares of Common Stock and other
capital stock of the Issuer issuable thereupon only on the basis of the
Conversion Price prior to adjustment, and (ii) not later than five Business Days
after such adjustment shall have become effective, pay to such Holder the
appropriate cash payment pursuant to Section 14.03 and issue to such Holder the
additional shares of Common Stock and other capital stock of the Issuer issuable
on such conversion.
(f) No adjustment in the Conversion Price shall be required if
Securityholders are to participate in the transaction on a basis and with notice
that the Board of Directors determines to be fair and appropriate in light of
the basis and notice on which holders of Common Stock participate in the
transaction. In addition, no adjustment in the Conversion Price shall be
required unless such adjustment would require an increase or decrease of at
least 1% in the Conversion Price; provided, that any adjustments which by reason
of this subsection (f) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under this
Article shall be made to the nearest cent or to the nearest one-hundredth of a
share, as the case may be.
(g) Whenever the Conversion Price is adjusted as herein provided, the
Issuer shall promptly (i) file with the Trustee and each conversion agent an
Officers' Certificate setting forth the Conversion Price after such adjustment
and setting forth in reasonable detail the facts requiring such adjustment and
the calculations on which the adjustment is based, which certificate shall be
conclusive evidence of the correctness of such adjustment and which shall be
made available by the Trustee to the Holders of Securities for inspection
thereof and (ii) mail or cause to be mailed a notice of such adjustment, setting
forth the adjusted Conversion Price and the date on which such adjustment became
or becomes effective, to each Holder of Securities at his or her address as the
same appears on the registry books of the Issuer.
Anything in this Section to the contrary notwithstanding, the Issuer
shall be entitled to make such reductions in the Conversion Price, in addition
to those required by this Section, as it in its discretion shall determine to be
advisable in
86
order that any stock dividend, subdivision or combination of shares,
distribution of rights, warrants or options to purchase stock or securities,
distribution of securities convertible into or exchangeable for stock or
distribution of other assets (other than cash dividends) hereafter made by the
Issuer to its stockholders shall not be taxable.
SECTION 14.05. Continuation of Conversion Privilege in Case of
Reclassification, Reorganization, Change, Merger, Consolidation or Sale of
Assets. In case of any reclassification or change of outstanding shares of
Common Stock (other than a change in par value, or from par value to no par
value, or from no par value to par value, or as a result of a subdivision or
combination), or in case of any consolidation of the Issuer with, or merger of
the Issuer with or into, any other Person, any merger of another Person into the
Issuer (other than a merger which does not result in any reclassification,
change, conversion, exchange or cancellation of outstanding shares of Common
Stock of the Issuer) or any sale or transfer of all or substantially all of the
assets of the Issuer, the Issuer, or the Person formed by such consolidation or
resulting from such merger or which acquires such assets, as the case may be,
shall execute and deliver to the Trustee a supplemental indenture complying with
the provisions of Article 9, in form satisfactory to the Trustee, providing that
the Holder of each Security then Outstanding shall have the right thereafter to
convert such Security only into the kind and amount of securities, cash and
other property receivable upon such reclassification, change, consolidation,
merger, sale or transfer by a holder of the number of shares of Common Stock of
the Issuer into which such Security might have been converted immediately prior
to such reclassification, change, consolidation, merger, sale or transfer,
assuming such holder of Common Stock of the Issuer (a) is not a Person with
which the Issuer consolidated or into which the Issuer merged or which merged
into the Issuer or to which such sale or transfer was made, as the case may be
("constituent Person"), or an affiliate of a constituent Person and (b) failed
to exercise his or her rights of an election, if any, as to the kind or amount
of securities, cash and other property receivable upon such reclassification,
change, consolidation, merger, sale or transfer (provided, that, if the kind or
amount of securities, cash and other property receivable upon such
reclassification, change, consolidation, merger, sale or transfer is not the
same for each share of Common Stock of the Issuer held immediately prior to such
reclassification, change, consolidation, merger, sale or transfer by other than
a constituent Person or an affiliate thereof and in respect of which such rights
of election shall not have been exercised ("non-electing share"), then for the
purpose of this Section the kind and amount of securities, cash and other
property receivable upon such reclassification, change, consolidation, merger,
sale or transfer by each non-electing share shall be deemed to be the kind and
amount so receivable per share by a plurality of the non-electing shares). Such
supplemental indenture shall provide for adjustments which, for events
subsequent to the
87
effective date of such supplemental indenture, shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Article. If, in the
case of any such reclassification, change, consolidation, merger, sale or
transfer, the stock or other securities and property (including cash) receivable
thereupon by a holder of shares of Common Stock includes shares of stock or
other securities and property (including cash) of a corporation other than the
successor or purchasing corporation, as the case may be, in such
reclassification, change, consolidation, merger, sale or transfer, then such
supplemental indenture shall also be executed by such other corporation and
shall contain such additional provisions to protect the interests of the Holders
of the Securities as the Board of Directors shall reasonably consider necessary
by reason of the foregoing. The above provisions of this Section shall similarly
apply to successive reclassifications, changes, consolidations, mergers, sales
or transfers.
Notice of the execution of each such supplemental indenture shall be
mailed to each Holder of Securities at his or her address as the same appears on
the registry books of the Issuer.
Neither the Trustee nor any conversion agent shall be under any
responsibility to determine the correctness of any provisions contained in any
such supplemental indenture relating either to the kind or amount of shares of
stock or securities or property or cash receivable by Holders of Securities upon
the conversion of their Securities after any such reclassification, change,
consolidation, merger, sale or transfer or to any adjustment to be made with
respect thereto, but, subject to the provisions of Sections 6.11 and 6.02, may
accept as conclusive evidence of the correctness of any such provisions, and
shall be protected in relying upon, the Officers' Certificate (which the Issuer
shall be obligated to file with the Trustee prior to the execution of any such
supplemental indenture) with respect thereto.
SECTION 14.06. Notice of Certain Events. In case:
(a) the Issuer shall declare a dividend (or any other distribution)
payable to the holders of Common Stock (other than cash dividends paid out of
the earned surplus of the Issuer or, if there shall be no earned surplus, out of
net profits for the fiscal year in which the dividend is made and/or the
preceding fiscal year, and dividends payable in Common Stock); or
(b) the Issuer shall authorize the granting to the holders of Common
Stock of rights, warrants or options to subscribe for or purchase any shares of
stock of any class or of any other rights, warrants or options; or
88
(c) the Issuer shall authorize any reclassification or change of the
Common Stock (other than a subdivision or combination of its oustanding shares
of Common Stock or a change in par value, or from par value to no par value, or
from no par value to par value), or any consolidation or merger to which the
Issuer is a party and for which approval of any stockholders of the Issuer is
required, or the sale or transfer of all or substantially all the property or
business of the Issuer; or
(d) there shall be proposed any voluntary or involuntary dissolution,
liquidation or winding-up of the Issuer;
then, the Issuer shall cause to be filed with the Trustee, and, if other than
the Corporate Trust Office of the Trustee, at the office or agency maintained
for the purpose of conversion of the Securities as provided in Section 3.02, and
shall cause to be mailed to each Holder of Securities, at his or her address as
it shall appear on the registry books of the Issuer, as promptly as possible but
in any event at least 20 days before the date hereinafter specified (or the
earlier of the dates hereinafter specified, in the event that more than one date
is specified), a notice stating the date on which (i) a record is expected to be
taken for the purpose of such dividend, distribution, rights, warrants or
options, or if a record is not to be taken, the date as of which the holders of
Common Stock of record to be entitled to such dividend, distribution, rights or
warrants are to be determined, or (ii) such reclassification, change,
consolidation, merger, sale, transfer, dissolution, liquidation or winding-up is
expected to become effective and the date, if any is to be fixed, as of which it
is expected that holders of Common Stock of record shall be entitled to exchange
their shares of Common Stock for securities or other property deliverable upon
such reclassification, change, consolidation, merger, sale, transfer,
dissolution, liquidation or winding-up.
SECTION 14.07. Taxes on Conversion. The issuance and delivery of
certificates for shares of Common Stock on conversion of Securities shall be
made without charge to the converting Holder of Securities for such certificates
or for any documentary, stamp or similar taxes payable to the United States of
America or any political subdivision or taxing authority thereof in respect of
the issuance or delivery of such certificates; provided, however, that the
Issuer shall not be required to pay any tax which may be payable in respect of
any transfer involved in the issuance of certificates for shares of Common
Stock, and no such issue or delivery shall be made unless and until the Person
requesting such issue or delivery has paid to the Issuer the amount of any such
tax or has established, to the satisfaction of the Issuer, that such tax has
been paid.
SECTION 14.08. Issuer to Provide Common Stock. The Issuer covenants
that it will reserve and keep available, free from preemptive rights, out of its
89
authorized but unissued shares, solely for the purpose of issue upon conversion
of Securities as herein provided, sufficient shares to provide for the
conversion of the Securities from time to time as such Securities are presented
for conversion.
If any shares of Common Stock to be reserved for the purpose of
conversion of Securities hereunder require registration with or approval of any
governmental authority under any Federal or State law before such shares may be
validly issued or delivered upon conversion, then the Issuer covenants that it
will in good faith and as expeditiously as possible endeavor to secure such
registration or approval, as the case may be; provided, however, that nothing in
this Section shall be deemed to affect in any way the obligations of the Issuer
to convert Securities into Common Stock as provided in this Article.
Before taking any action which would cause an adjustment reducing the
Conversion Price below the then par value, if any, of the Common Stock, the
Issuer will take all corporate action which may, in the Opinion of Counsel, be
necessary in order that the Issuer may validly and legally issue fully paid and
non-assessable shares of Common Stock at such adjusted Conversion Price.
The Issuer covenants that all shares of Common Stock which may be
issued upon conversion of Securities will upon issue be duly and validly issued
and fully paid and non-assessable by the Issuer and free of preemptive rights
and that, if the Common Stock is then listed on any national securities
exchange, the shares of Common Stock which may be issued upon conversion of
Securities will be similarly listed at the time of such issuance.
SECTION 14.09. Disclaimer of Responsibility for Certain Matters.
Neither the Trustee nor any conversion agent or agent of the Trustee shall at
any time be under any duty or responsibility to any Holder of Securities to
determine whether any facts exist which may require any adjustment of the
Conversion Price, or with respect to the Officers' Certificate referred to in
Section 14.04(g) or 14.05, or with respect to the nature or extent of any such
adjustment when made, or with respect to the method employed, or herein or in
any supplemental indenture provided to be employed, in making the same. Neither
the Trustee nor any conversion agent nor any agent of the Trustee shall be
accountable with respect to the validity, registration, listing, or value (or
the kind or amount) of any shares of Common Stock, or of any securities or cash
or other property, which may at any time be issued or delivered upon the
conversion of any Security; and neither the Trustee nor any agent of the Trustee
nor any conversion agent makes any representation with respect thereto. Neither
the Trustee nor any conversion agent nor any agent of the Trustee shall be
responsible for any failure of the Issuer to make any cash payment or to issue,
register the transfer of or deliver any shares of Common Stock or stock
certificates or other securities or property upon the surrender of any
90
Security and any appurtenant Coupons for the purpose of conversion or, subject
to Sections 6.11 and 6.02, to comply with any of the covenants of the Issuer
contained in this Article.
SECTION 14.10. Return of Funds Deposited for Redemption of Converted
Securities. Any funds which at any time shall have been deposited by the Issuer
or on its behalf with the Trustee or any other paying agent for the purpose of
paying the principal of and interest on any of the Securities and which shall
not be required for such purposes because of the conversion of such Securities,
as provided in this Article, shall after such conversion, upon the written
request of the Issuer, be repaid to the Issuer by the Trustee or such other
paying agent.
91
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 December 16, 1999.
TEXAS INSTRUMENTS INCORPORATED
By /s/ William A. Aylesworth
------------------------------------
Name: William A. Aylesworth
Title: Senior Vice President
Treasurer and
Chief Financial Officer
[CORPORATE SEAL]
Attest:
By /s/ Cynthia H. Haynes
------------------------------------
Name: Cynthia H. Haynes
Title: Assistant Secretary
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, Trustee
By /s/ John G. Jones
------------------------------------
Name: John G. Jones
Title: Vice President
[CORPORATE SEAL]
Attest:
By /s/ Rebecca S. Newman
------------------------------------
Name: Rebecca S. Newman
Title: Vice President and Trust Officer
92
STATE OF TEXAS )
:ss
COUNTY OF DALLAS )
On this 16th day of December, 1999 before me personally came, William A.
Aylesworth to me personally known, who, being by me duly sworn, did depose and
say that he resides at Lipan, Texas, that he is the Senior Vice President,
Treasurer and Chief Financial Officer of TEXAS INSTRUMENTS INCORPORATED, one of
the corporations described in and which executed the above instrument; that he
knows the corporate seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his name thereto by
like authority.
[NOTARIAL SEAL]
/s/ Ladonna Bruce
- -----------------------------------
Notary Public
93
STATE OF TEXAS )
:ss
COUNTY OF HARRIS )
On this 16th day of December, 1999 before me personally came, John G. Jones to
me personally known, who, being by me duly sworn, did depose and say that he
resides at Houston, Texas, that he is a Vice President of CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION, one of the corporations described in and which executed
the above instrument; that he knows the corporate seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
[NOTARIAL SEAL]
/s/ Virginia Rios-Ramirez
- -----------------------------------
Notary Public
94
EXHIBIT 4.3
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE REGISTERED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO 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 DEPOSITORY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.
TEXAS INSTRUMENTS INCORPORATED
[ ]% Note due [ ]
No. [ ] CUSIP No.: [ ]
$[ ]
TEXAS INSTRUMENTS INCORPORATED, a Delaware corporation
("Company", which term includes any successor corporation), for value received
promises to pay to [CEDE & CO.] or registered assigns, the principal sum of [ ]
on [ ].
Interest Payment Dates: [ ] and [ ] (each,
an "Interest Payment Date"), commencing on [ ].
Interest Record Dates: [ ] and [ ] (each,
an "Interest Record Date").
Reference is made to the further provisions of this Security
contained herein, which will for all purposes have the same effect as if set
forth at this place.
IN WITNESS WHEREOF, the Company has caused this Security to
be signed manually or by facsimile by its duly authorized officer.
TEXAS INSTRUMENTS INCORPORATED
By:_________________________________
Name:
Title:
Attest: _________________________
Name:
Title:
This is one of the Securities of the series designated herein
and referred to in the within-mentioned Indenture.
Dated: [ ] o,
as Trustee
By: _______________________________
Authorized Signatory
2
(REVERSE OF SECURITY)
TEXAS INSTRUMENTS INCORPORATED
[ ] Note due [ ]
1. Interest.
TEXAS INSTRUMENTS INCORPORATED , a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Security
at the rate per annum shown above. Cash interest on the Securities will accrue
from the most recent date to which interest has been paid or, if no interest
has been paid, from [ ]. The Company will pay interest [semi-annually] in
arrears on each Interest Payment Date, commencing [ ]. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal from time
to time on demand at the rate borne by the Securities and on overdue
installments of interest (without regard to any applicable grace periods) to
the extent lawful.
2. Method of Payment.
The Company shall pay interest on the Securities (except
defaulted interest) to the persons who are the registered Holders at the close
of business on the Interest Record Date immediately preceding the Interest
Payment Date notwithstanding any transfer or exchange of such Security
subsequent to such Interest Record Date and prior to such Interest Payment
Date. Holders must surrender Securities to a Paying Agent to collect principal
payments. The Company shall pay principal and interest in money of the United
States that at the time of payment is legal tender for payment of public and
private debts ("U.S. Legal Tender"). However, the Company may pay principal and
interest by wire transfer of Federal funds (provided that the Paying Agent
shall have received written wire instructions by no later than the Interest
Record Date for such Interest Payment Date), or interest by check payable in
such U.S. Legal Tender. The Company may deliver any such interest payment to
the Paying Agent or to a Holder at the Holder's registered address.
3. Paying Agent.
Initially, Citibank, N.A., (the "Trustee") will act as Paying
Agent. The Company may change any Paying Agent without notice to the Holders.
4. Indenture.
The Company issued the Securities under an Indenture, dated
as of July 15, 1996 (the "Indenture"), between the Company and the Trustee.
Capitalized terms herein are used as defined in the Indenture unless otherwise
defined herein. The terms of the Securities include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S.C. ss.ss. 77aaa- 77bbbb) (the "TIA"), as in
effect on the date of the Indenture until such time as the Indenture is
qualified under the TIA, and thereafter as in effect on the date on which the
Indenture is qualified under the TIA. Notwithstanding anything to the contrary
herein, the Securities are subject to all such terms, and holders of Securities
are referred to the Indenture and the TIA for a statement of them. The
Securities are general obligations of the Company limited in aggregate
principal amount to $[ ].
3
5. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder shall
register the transfer of or exchange Securities in accordance with the
Indenture. The Company may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay certain transfer
taxes or similar governmental charges payable in connection therewith as
permitted by the Indenture. The Company need not register the transfer of or
exchange any Securities or portions thereof selected for redemption, except the
unredeemed portion of any Security being redeemed in part.
6. Persons Deemed Owners.
The registered Holder of a Security shall be treated as the
owner of it for all purposes.
7. Unclaimed Funds.
If funds for the payment of principal or interest remain
unclaimed for two years, the Trustee and the Paying Agent will repay the funds
to the Company at its written request. After that, all liability of the Trustee
and such Paying Agent with respect to such funds shall cease.
8. Legal Defeasance.
The Company may be discharged from its obligations under the
Securities and under the Indenture with respect to the Securities except for
certain provisions thereof upon satisfaction of certain conditions specified in
the Indenture.
9. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Securities and the
provision of the Indenture relating to the Securities may be amended or
supplemented with the written consent of the Holders of at least a majority in
aggregate principal amount of the Securities then outstanding, and any existing
Default or Event of Default or compliance with certain provisions may be waived
with the consent of the Holders of a majority in aggregate principal amount of
the Securities then outstanding. Without notice to or consent of any Holder,
the parties thereto may amend or supplement the Indenture and the Securities
to, among other things, cure any ambiguity, defect or inconsistency, or make
any other change that does not materially and adversely affect the rights of
any Holder of a Security.
10. Restrictive Covenant.
The Indenture contains a covenant that limits the ability of
the Company to merge or sell all or substantially all of its assets.
11. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in aggregate principal amount of Securities then
outstanding may declare all of the Securities to be due and payable immediately
in the manner and with the effect provided in the Indenture. Holders of
Securities may not enforce the Indenture or the Securities except as provided
in the Indenture. The Trustee is not obligated to enforce the Indenture or the
Securities unless it has received indemnity satisfactory to it. The Indenture
permits, subject to certain limitations therein provided, Holders of a majority
in aggregate principal amount of the Securities then outstanding to direct the
Trustee in its exercise of any trust or power. The Trustee
4
may withhold from Holders of Securities notice of certain continuing Defaults
or Events of Default if it determines that withholding notice is in their
interest.
12. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any
other capacity, may become the owner or pledgee of Securities and may otherwise
deal with the Company as if it were not the Trustee.
13. No Recourse Against Others.
No stockholder, director, officer, or incorporator, as such,
of the Company or any of its successors shall have any liability for any
obligation of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of, such obligations or their
creation. Each Holder of a Security by accepting a Security waives and releases
all such liability. The waiver and release are part of the consideration for
the issuance of the Securities.
14. Authentication.
This Security shall not be valid until the Trustee manually
signs the certificate of authentication on this Security.
15. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder
of a Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
16. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP
numbers to be printed on the Securities as a convenience to the Holders of the
Securities. No representation is made as to the accuracy of such numbers as
printed on the Securities and reliance may be placed only on the other
identification numbers printed hereon.
17. Governing Law.
The laws of the State of New York shall govern the Indenture
and this Security thereof without regard to principles of conflicts of laws.
5
ASSIGNMENT FORM
I or we assign and transfer this Security to
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee or transferee)
- --------------------------------------------------------------------------------
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint
___________________________________________________________________ agent to
transfer this Security on the books of the Company. The agent may substitute
another to act for him.
Dated: __________________________ Signed: _____________________________
(Signed exactly as name appears
on the other side of this Security)
Signature Guarantee: _________________________________________________________
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Trustee)
6
EXHIBIT 4.4
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE REGISTERED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO 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 DEPOSITORY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.
TEXAS INSTRUMENTS INCORPORATED
[ ]% Subordinated Note due [ ]
No. [ ] CUSIP No.: [ ]
$[ ]
TEXAS INSTRUMENTS INCORPORATED, a Delaware corporation
("Company", which term includes any successor corporation), for value received
promises to pay to [CEDE & CO.] or registered assigns, the principal sum of [ ]
on [ ].
Interest Payment Dates: [ ] and [ ] (each,
an "Interest Payment Date"), commencing on [ ].
Interest Record Dates: [ ] and [ ] (each,
an "Interest Record Date").
Reference is made to the further provisions of this Security
contained herein, which will for all purposes have the same effect as if set
forth at this place.
IN WITNESS WHEREOF, the Company has caused this Security to
be signed manually or by facsimile by its duly authorized officer.
TEXAS INSTRUMENTS INCORPORATED
By: _________________________________
Name:
Title:
Attest: _________________________
Name:
Title:
This is one of the Securities of the series designated herein
and referred to in the within-mentioned Indenture.
Dated: [ ] o,
as Trustee
By: _______________________________
Authorized Signatory
2
(REVERSE OF SECURITY)
TEXAS INSTRUMENTS INCORPORATED
[ ] Subordinated Note due [ ]
1. Interest.
TEXAS INSTRUMENTS INCORPORATED, a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Security
at the rate per annum shown above. Cash interest on the Securities will accrue
from the most recent date to which interest has been paid or, if no interest
has been paid, from [ ]. The Company will pay interest [semi-annually] in
arrears on each Interest Payment Date, commencing [ ]. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal from time
to time on demand at the rate borne by the Securities and on overdue
installments of interest (without regard to any applicable grace periods) to
the extent lawful.
2. Method of Payment.
The Company shall pay interest on the Securities (except
defaulted interest) to the persons who are the registered Holders at the close
of business on the Interest Record Date immediately preceding the Interest
Payment Date notwithstanding any transfer or exchange of such Security
subsequent to such Interest Record Date and prior to such Interest Payment
Date. Holders must surrender Securities to a Paying Agent to collect principal
payments. The Company shall pay principal and interest in money of the United
States that at the time of payment is legal tender for payment of public and
private debts ("U.S. Legal Tender"). However, the Company may pay principal and
interest by wire transfer of Federal funds (provided that the Paying Agent
shall have received written wire instructions by no later than the Interest
Record Date for such Interest Payment Date), or interest by check payable in
such U.S. Legal Tender. The Company may deliver any such interest payment to
the Paying Agent or to a Holder at the Holder's registered address.
3. Paying Agent.
Initially, Chase Bank of Texas, National Association (the
"Trustee") will act as Paying Agent. The Company may change any Paying Agent
without notice to the Holders.
4. Indenture.
The Company issued the Securities under an Indenture, dated
as of December 16, 1999 (the "Indenture"), between the Company and the Trustee.
Capitalized terms herein are used as defined in the Indenture unless otherwise
defined herein. The terms of the Securities include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S.C. ss.ss. 77aaa- 77bbbb) (the "TIA"), as in
effect on the date of the Indenture until such time as the Indenture is
qualified under the TIA, and thereafter as in effect on the date on which the
Indenture is qualified under the TIA. Notwithstanding anything to the contrary
herein, the Securities are subject to all such terms, and holders of Securities
are referred to the Indenture and the TIA for a statement of them. The
Securities are general obligations of the Company limited in aggregate
principal amount to $[ ].
3
5. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder shall
register the transfer of or exchange Securities in accordance with the
Indenture. The Company may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay certain transfer
taxes or similar governmental charges payable in connection therewith as
permitted by the Indenture. The Company need not register the transfer of or
exchange any Securities or portions thereof selected for redemption, except the
unredeemed portion of any Security being redeemed in part.
6. Persons Deemed Owners.
The registered Holder of a Security shall be treated as the
owner of it for all purposes.
7. Unclaimed Funds.
If funds for the payment of principal or interest remain
unclaimed for two years, the Trustee and the Paying Agent will repay the funds
to the Company at its written request. After that, all liability of the Trustee
and such Paying Agent with respect to such funds shall cease.
8. Legal Defeasance.
The Company may be discharged from its obligations under the
Securities and under the Indenture with respect to the Securities except for
certain provisions thereof upon satisfaction of certain conditions specified in
the Indenture.
9. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Securities and the
provision of the Indenture relating to the Securities may be amended or
supplemented with the written consent of the Holders of at least a majority in
aggregate principal amount of the Securities then outstanding, and any existing
Default or Event of Default or compliance with certain provisions may be waived
with the consent of the Holders of a majority in aggregate principal amount of
the Securities then outstanding. Without notice to or consent of any Holder,
the parties thereto may amend or supplement the Indenture and the Securities
to, among other things, cure any ambiguity, defect or inconsistency, or make
any other change that does not materially and adversely affect the rights of
any Holder of a Security.
10. Restrictive Covenant.
The Indenture contains a covenant that limits the ability of
the Company to merge or sell all or substantially all of its assets.
11. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in aggregate principal amount of Securities then
outstanding may declare all of the Securities to be due and payable immediately
in the manner and with the effect provided in the Indenture. Holders of
Securities may not enforce the Indenture or the Securities except as provided
in the Indenture. The Trustee is not obligated to enforce the Indenture or the
Securities unless it has received indemnity satisfactory to it. The Indenture
permits, subject to certain limitations therein provided, Holders of a majority
in aggregate principal amount of the Securities then outstanding to direct the
Trustee in its exercise of any trust or power. The Trustee
4
may withhold from Holders of Securities notice of certain continuing Defaults
or Events of Default if it determines that withholding notice is in their
interest.
12. Subordination.
Reference is made to the Indenture, including, without
limitation, provisions subordinating the payment of principal of and premium,
if any, and interest on the Securities to the prior payment in full of all
Senior Indebtedness as defined in the Indenture.
13. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any
other capacity, may become the owner or pledgee of Securities and may otherwise
deal with the Company as if it were not the Trustee.
14. No Recourse Against Others.
No stockholder, director, officer, or incorporator, as such,
of the Company or any of its successors shall have any liability for any
obligation of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of, such obligations or their
creation. Each Holder of a Security by accepting a Security waives and releases
all such liability. The waiver and release are part of the consideration for
the issuance of the Securities.
15. Authentication.
This Security shall not be valid until the Trustee manually
signs the certificate of authentication on this Security.
16. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder
of a Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
17. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP
numbers to be printed on the Securities as a convenience to the Holders of the
Securities. No representation is made as to the accuracy of such numbers as
printed on the Securities and reliance may be placed only on the other
identification numbers printed hereon.
18. Governing Law.
The laws of the State of New York shall govern the Indenture
and this Security thereof without regard to principles of conflicts of laws.
5
ASSIGNMENT FORM
I or we assign and transfer this Security to
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee or transferee)
- --------------------------------------------------------------------------------
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint
___________________________________________________________________ agent to
transfer this Security on the books of the Company. The agent may substitute
another to act for him.
Dated: __________________________ Signed: _____________________________
(Signed exactly as name appears
on the other side of this Security)
Signature Guarantee: _________________________________________________________
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Trustee)
6
EXHIBIT 4.7
[Form of Warrant Agreement for Warrants Sold Alone]
TEXAS INSTRUMENTS INCORPORATED
and
---------------------,
as Warrant Agent
-------------------------
WARRANT AGREEMENT
Dated as of ___________
------------------------
Warrants to Purchase ________
---------------------
TABLE OF CONTENTS
----------------------
PAGE
----
ARTICLE 1
ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY OF WARRANT
CERTIFICATES
SECTION 1.01. Issuance of Warrants...........................................2
SECTION 1.02. Execution and Delivery of Warrant Certificates.................2
SECTION 1.03. Issuance of Warrant Certificates...............................3
ARTICLE 2
WARRANT PRICE, DURATION AND EXERCISE
SECTION 2.01. Warrant Price..................................................4
SECTION 2.02. Duration of Warrants...........................................4
SECTION 2.03. Exercise of Warrants...........................................4
ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT
SECTION 3.01. No Rights as Warrant Securityholder Conferred by
Warrants or Warrant Certificates.....................................6
SECTION 3.02. Lost, Mutilated, Stolen or Destroyed Warrant Certificates......6
SECTION 3.03. Enforcement of Rights..........................................7
SECTION 3.04. Merger, Consolidation, Conveyance or Transfer..................7
ARTICLE 4
EXCHANGE AND TRANSFER
SECTION 4.01. Exchange and Transfer..........................................8
SECTION 4.02. Treatment of Holders of Warrant Certificates...................9
SECTION 4.03. Cancellation of Warrant Certificates...........................9
ARTICLE 5
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent..................................................10
SECTION 5.02. Conditions of Warrant Agent's Obligations......................10
SECTION 5.03. Resignation and Appointment of Successor.......................12
PAGE
----
ARTICLE 6
MISCELLANEOUS
SECTION 6.01. Amendment......................................................14
SECTION 6.02. Notices and Demands to the Company and Warrant Agent...........14
SECTION 6.03. Addresses......................................................14
SECTION 6.04. Applicable Law.................................................14
SECTION 6.05. Delivery of Prospectus.........................................14
SECTION 6.06. Obtaining of Governmental Approval.............................15
SECTION 6.07. Persons Having Rights Under Warrant Agreement..................15
SECTION 6.08. Headings.......................................................15
SECTION 6.09. Counterparts...................................................15
SECTION 6.10. Inspection of Agreement........................................15
SECTION 6.11. Notices to Holders of Warrants.................................15
TESTIMONIUM...................................................................16
SIGNATURES....................................................................16
EXHIBIT A - Form of Warrant Certificate
ii
WARRANT AGREEMENT1
THIS AGREEMENT dated as of between TEXAS INSTRUMENTS INCORPORATED, a
corporation duly organized and existing under the laws of the State of Delaware
(the "Company"), and , a [bank] [trust company] duly incorporated and
existing under the laws of , as Warrant Agent (the "Warrant Agent"),
W I T N E S S E T H :
[WHEREAS, the Company has entered into an Indenture dated as of July 15,
1996 (the "Senior Indenture") between the Company and Citibank, N.A., as
Trustee (the "Senior Indenture Trustee"), and an Indenture dated as of December
16, 1999 (the "Subordinated Indenture") between the Company and Chase Bank of
Texas, National Association, as Trustee (the "Subordinated Indenture Trustee")
(together the "Trustees" or "Trustee" and "Indentures" or "Indenture"),
providing for the issuance from time to time of its unsecured debt securities
to be issued in one or more series as provided in the Indenture; and]
WHEREAS, the Company proposes to sell [title of such securities being
offered] (the "Offered Securities") with one or more warrants (the "Warrants")
representing the right to purchase [title of such securities purchasable
through exercise of Warrants] (the "Warrant Securities"), the Warrants to be
evidenced by warrant certificates issued pursuant to this Agreement (the
"Warrant Certificates"); and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company in connection with the issuance, transfer, exchange, exercise and
replacement of the Warrant Certificates, and in this Agreement wishes to set
forth, among other things, the form and provisions of the Warrant Certificates
and the terms and conditions on which they may be issued, transferred,
exchanged, exercised and replaced;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
- --------
1 Complete or modify the provisions of this form as appropriate to
reflect the terms of the Warrants and Warrant Securities. Monetary amounts may
be in U.S. dollars in a foreign currency or in a composite currency, including
but not limited to the euro.
ARTICLE 1
ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY OF WARRANT
CERTIFICATES
SECTION 1.01. Issuance of Warrants. The Warrants shall be evidenced by one
or more Warrant Certificates. Each Warrant evidenced thereby shall represent
the right, subject to the provisions contained herein and therein, to purchase
[_____ shares of the Warrant Securities] [ aggregate principal amount of
Warrant Securities].
SECTION 1.02. Execution and Delivery of Warrant Certificates. Each
Warrant, whenever issued, shall be evidenced by a Warrant Certificate in
registered form substantially in the form set forth in Exhibit A hereto, shall
be dated and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved
thereon as the officers of the Company executing the same may approve
(execution thereof to be conclusive evidence of such approval) and as are not
inconsistent with the provisions of this Agreement, or 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 stock exchange on which the Warrants may be
listed, or to conform to usage. The Warrant Certificates shall be signed on
behalf of the Company by its chairman or vice chairman of the Board of
Directors, the president, any managing director, or the treasurer of the
Company, in each case under its corporate seal, which may but need not be
attested by its Secretary or one of its Assistant Secretaries. Such signatures
may be manual or facsimile signatures of such authorized officers and may be
imprinted or otherwise reproduced on the Warrant Certificates. The corporate
seal of the Company may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the Warrant
Certificates.
No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the Warrant Agent by manual signature. Such signature by the
Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence, and the only evidence, that the Warrant Certificate so
countersigned has been duly issued hereunder.
In case any officer of the Company who shall have signed any of the
Warrant Certificates either manually or by facsimile signature shall cease to
be such officer before the Warrant Certificates so signed shall have been
countersigned and delivered by the Warrant Agent, such Warrant Certificates may
be countersigned and delivered notwithstanding that the person who signed such
Warrant Certificates ceased to be such officer of the Company; and any Warrant
2
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
officers of the Company, although at the date of the execution of this
Agreement any such person was not such officer.
The term "Holder", when used with respect to any Warrant Certificate shall
mean any person in whose name at the time such Warrant Certificate shall be
registered upon the books to be maintained by the Warrant Agent for that
purpose.
SECTION 1.03. Issuance of Warrant Certificates. Warrant Certificates
evidencing the right to purchase [_____ shares of the Warrant Securities] [an
aggregate principal amount not exceeding aggregate principal amount of Warrant
Securities] (except as provided in Sections 2.03, 3.02 and 4.01) may be
executed by the Company and delivered to the Warrant Agent upon the execution
of this Warrant Agreement or from time to time thereafter. The Warrant Agent
shall, upon receipt of Warrant Certificates duly executed on behalf of the
Company, countersign Warrant Certificates evidencing Warrants representing the
right to purchase up to [_____shares of the Warrant Securities] [ aggregate
principal amount of Warrant Securities] and shall deliver such Warrant
Certificates to or upon the order of the Company. Subsequent to such original
issuance of the Warrant Certificates, the Warrant Agent shall countersign a
Warrant Certificate only if the Warrant Certificate is issued in exchange or
substitution for one or more previously countersigned Warrant Certificates or
in connection with their transfer as hereinafter provided or as provided in the
antepenultimate paragraph of Section 2.03.
Pending the preparation of definitive Warrant Certificates evidencing
Warrants, the Company may execute and the Warrant Agent shall countersign and
deliver temporary Warrant Certificates evidencing such Warrants (printed,
lithographed, typewritten or otherwise produced, in each case in form
satisfactory to the Warrant Agent). Such temporary Warrant Certificates shall
be issuable substantially in the form of the definitive Warrant Certificates
but with such omissions, insertions and variations as may be appropriate for
temporary Warrant Certificates, all as may be determined by the Company with
the concurrence of the Warrant Agent. Such temporary Warrant Certificates may
contain such reference to any provisions of this Warrant Agreement as may be
appropriate. Every such temporary Warrant Certificate shall be executed by the
Company and shall be countersigned by the Warrant Agent upon the same
conditions and in substantially the same manner, and with like effect, as the
definitive Warrant Certificates. Without unreasonable delay, the Company shall
execute and shall furnish definitive Warrant Certificates and thereupon such
temporary Warrant Certificates may be surrendered in exchange therefor without
charge pursuant to and subject to the provisions of Section 4.01, and the
Warrant Agent shall
3
countersign and deliver in exchange for such temporary Warrant Certificates
definitive Warrant Certificates of authorized denominations evidencing a like
aggregate number of Warrants evidenced by such temporary Warrant Certificates.
Until so exchanged, such temporary Warrant Certificates shall be entitled to
the same benefits under this Warrant Agreement as definitive Warrant
Certificates.
ARTICLE 2
WARRANT PRICE, DURATION AND EXERCISE
SECTION 2.01. Warrant Price. Warrant Price. On , the exercise price of
each Warrant will be . During the period from , through and including
, , the exercise price of each Warrant will be [plus [accrued
amortization of the original issue discount] [accrued interest] from , .]
On , , the exercise price of each Warrant will be . During the
period from , through and including , , the exercise price of
each Warrant will be [plus [accrued amortization of the original issue discount]
[accrued interest] from , .] [In each case, the original issue
discount will be amortized at a % annual rate, computed on an annual basis
using the "interest" method and using a 360-day year consisting of twelve 30-day
months]. Such exercise price of Warrant Securities is referred to in this
Agreement as the "Warrant Price". [The original issue discount for each
principal amount of Warrant Securities is ].
SECTION 2.02. Duration of Warrants. Subject to Section 4.03(b), each
Warrant may be exercised [in whole but not in part] [in whole or in part] [at
any time, as specified herein, on or after [the date thereof] [ , ] and
at or before [time, location] on , (each day during such period may
hereinafter be referred to as an "Exercise Date")] [on [list of specific dates]
(each, an "Exercise Date")], or such later date as the Company may designate by
notice to the Warrant Agent and the Holders of Warrant Certificates [in
registered form and to the beneficial owners of the Global Warrant Certificate]
(the "Expiration Date"). Each Warrant not exercised at or before [time,
location] on the Expiration Date shall become void, and all rights of the
Holder [and any beneficial owners] of the Warrant Certificate evidencing such
Warrant under this Agreement shall cease.
SECTION 2.03. Exercise of Warrants. [With respect to Warrants evidenced by
Warrant Certificates in registered form, during] [During] the period specified
in Section 2.02, any whole number of Warrants may be exercised by providing
certain information as set forth on the reverse side of the Warrant
Certificates evidencing such Warrants and by paying in full [in lawful money of
the United States of America] [in applicable currency] [in cash] [by certified
check or official bank check or by bank wire transfer, in each case,] [by bank
wire transfer] [in immediately available funds,] the Warrant Price for each
Warrant exercised [(plus accrued interest, if any, on the Warrant Securities to
be issued
4
upon exercise of such Warrant from and including the Interest Payment Date (as
defined in the Indenture), if any, in respect of such Warrant Securities
immediately preceding the Exercise Date to and including the Exercise Date
(unless the Exercise Date is after the Regular Record Date (as defined in the
Indenture), if any, for such Interest Payment Date, but on or before the
immediately succeeding Interest Payment Date for such Warrant Securities, in
which event no such accrued interest shall be payable))] to the Warrant Agent
at its corporate trust office at [address] [or at ], provided that such
exercise is subject to receipt within five business days of such [payment]
[wire transfer] by the Warrant Agent of the Warrant Certificate evidencing each
Warrant exercised with the form of election to purchase Warrant Securities set
forth on the reverse side of the Warrant Certificate properly completed and
duly executed. [Cashless Exercise Option].
The date on which payment in full of the Warrant Price (plus any such
accrued interest) is received by the Warrant Agent shall, subject to receipt of
the Warrant Certificate as aforesaid, be deemed to be the date on which the
Warrant is exercised. The Warrant Agent shall deposit all funds received by it
in payment for the exercise of Warrants in an account of the Company maintained
with it (or in such other account as may be designated by the Company) and
shall advise the Company, by telephone or by facsimile transmission or other
form of electronic communication available to both parties, at the end of each
day on which a payment for the exercise of Warrants is received of the amount
so deposited to its account. The Warrant Agent shall promptly confirm such
advice to the Company in writing.
If a day on which Warrants may be exercised in the city in which such
Warrants are to be exercised shall be a Saturday or Sunday or a day on which
banking institutions in such city are authorized or required to be closed,
then, notwithstanding any other provision of this Agreement or the Warrant
Certificate evidencing such Warrants, but subject to the limitation that no
Warrant may be exercised after the Expiration Date, the Warrants shall be
exercisable on the next succeeding day which in such city is not a Saturday or
Sunday or a day on which banking institutions in such city are authorized or
required to be closed.
The Warrant Agent shall, from time to time, as promptly as practicable,
advise the Company [and the Trustee] in writing of (i) the number of Warrants
exercised, (ii) the instructions of each Holder of the Warrant Certificates
evidencing such Warrants with respect to delivery of the Warrant Securities to
be issued upon such exercise, (iii) delivery of any Warrant Certificates
evidencing the balance, if any, of the Warrants remaining after such exercise,
and (iv) such other information as the Company or the Trustee shall reasonably
require.
5
As soon as practicable after the exercise of any Warrant, but subject to
receipt by the Warrant Agent of the Warrant Certificate evidencing such Warrant
as provided in this Section, the Company shall issue[, pursuant to the
Indenture, in authorized denominations to or upon the order of the Holder of
the Warrant Certificate evidencing each Warrant,] the Warrant Securities to
which such Holder is entitled, in fully registered form, registered in such
name or names as may be directed by such Holder. If fewer than all of the
Warrants evidenced by such Warrant Certificate are exercised, the Company shall
execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, a new Warrant Certificate evidencing the number of
such Warrants remaining unexercised.
The Company shall not be required to pay any stamp or other tax or other
governmental charge required to be paid in connection with any transfer
involved in the issuance of the Warrant Securities, and in the event that any
such transfer is involved, the Company shall not be required to issue or
deliver any Warrant Security until such tax or other charge shall have been
paid or it has been established to the Company's satisfaction that no such tax
or other charge is due.
ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT
SECTION 3.01. No Rights as Warrant Securityholder Conferred by Warrants or
Warrant Certificates. No Warrant Certificate or Warrant evidenced thereby shall
entitle the Holder or any beneficial owner thereof to any of the rights of a
holder or beneficial owner of Warrant Securities, including, without
limitation, [the right to receive the payment of principal of (premium, if any)
or interest, if any, on Warrant Securities or to enforce any of the covenants
in the Indenture] [the right to receive dividend payments on the Warrant
Securities or any voting rights].
SECTION 3.02. Lost, Mutilated, Stolen or Destroyed Warrant Certificates.
Upon receipt by the Warrant Agent of evidence reasonably satisfactory to it and
the Company of the ownership of and the loss, mutilation, theft or destruction
of any Warrant Certificate and of such security or indemnity as may be required
by the Company and the Warrant Agent to hold each of them and any agent of them
harmless and, in the case of mutilation of a Warrant Certificate, upon
surrender thereof to the Warrant Agent for cancellation, then, in the absence
of notice to the Company or the Warrant Agent that such Warrant Certificate has
been acquired by a bona fide purchaser, the Company shall execute, and an
authorized officer of the Warrant Agent shall manually countersign and deliver,
in exchange for or in lieu of the lost, mutilated, stolen or destroyed Warrant
Certificate, a new Warrant Certificate of the same tenor and evidencing a like
number of Warrants. Upon the
6
issuance of any new Warrant Certificate under this Section, the Company may
require the payment of a sum sufficient to cover any stamp or other tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Warrant Agent) in connection
therewith. Every substitute Warrant Certificate executed and delivered pursuant
to this Section in lieu of any lost, mutilated, stolen or destroyed Warrant
Certificate shall represent an additional contractual obligation of the
Company, whether or not the lost, stolen or destroyed Warrant Certificate shall
be at any time enforceable by anyone, and shall be entitled to the benefits of
this Agreement equally and proportionately with any and all other Warrant
Certificates duly executed and delivered 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 of lost, mutilated, stolen
or destroyed Warrant Certificates.
SECTION 3.03. Enforcement of Rights. Notwithstanding any of the provisions
of this Agreement, any Holder of a Warrant Certificate, without the consent of
the Warrant Agent, the relevant Trustee, the holder of any Offered Securities
or the Holder of any other Warrant Certificate, may, in its own behalf and for
its own benefit, enforce, and may institute and maintain any suit, action or
proceeding against the Company suitable to enforce, or otherwise in respect of,
its right to exercise its Warrants in the manner provided in its Warrant
Certificate and in this Agreement.
SECTION 3.04. Merger, Consolidation, Conveyance or Transfer. (a) If at any
time there shall be a merger or consolidation of the Company or a conveyance or
transfer of its property and assets substantially as an entirety [as permitted
under the Indenture], then in any such event the successor or assuming
corporation referred to therein shall succeed to and be substituted for the
Company, with the same effect[, subject to the Indenture,] as if it had been
named herein and in the Warrant Certificates as the Company; the Company shall
thereupon, except in the case of a transfer by way of lease, be relieved of any
further obligation hereunder and under the Warrants and the Warrant
Certificates, and the Company as the predecessor corporation, except in the
case of a transfer by way of lease, may thereupon or at any time thereafter be
dissolved, wound up or liquidated. Such successor or assuming corporation may
thereupon cause to be signed, and may issue either in its own name or in the
name of the Company, Warrant Certificates evidencing any or all of the Warrants
issuable hereunder which theretofore shall not have been signed by the Company,
and may execute and deliver Warrant Securities in its own name[, pursuant to
the Indenture], in fulfillment of its obligations to deliver Warrant Securities
upon exercise of the Warrants. All the Warrants so issued shall in all respects
have the same legal rank and benefit under this Agreement as the Warrants
theretofore or thereafter issued in accordance with the terms of this Agreement
as though all of such Warrants
7
had been issued at the date of the execution hereof. In any case of any such
merger, consolidation, conveyance or transfer, such changes in phraseology and
form (but not in substance) may be made in the Warrant Certificates
representing the Warrants thereafter to be issued as may be appropriate.
(b) The Warrant Agent may receive a written opinion of legal counsel (who
shall be acceptable to the Warrant Agent) as conclusive evidence that any such
merger, consolidation, conveyance or transfer complies with the provisions of
this Section and the Indentures.
[Add Anti-Dilution provisions as necessary.]
ARTICLE 4
EXCHANGE AND TRANSFER
SECTION 4.01. Exchange and Transfer. (a) Upon surrender at the corporate
trust office of the Warrant Agent at [address] [or ], Warrant Certificates
evidencing Warrants may be exchanged for Warrant Certificates in other
authorized denominations evidencing such Warrants or the transfer thereof may
be registered in whole or in part; provided, however, that such other Warrant
Certificates shall evidence the same aggregate number of Warrants as the
Warrant Certificates so surrendered.
(b) The Warrant Agent shall keep, at its corporate trust office at
[address] [and at ], books in which, subject to such reasonable regulations
as it may prescribe, it shall register Warrant Certificates and exchanges and
transfers of outstanding Warrant Certificates upon surrender of such Warrant
Certificates to the Warrant Agent at its corporate trust office at [address]
[or ] for exchange or registration of transfer, properly endorsed [or
accompanied by appropriate instruments of registration of transfer and written
instructions for transfer, all in form satisfactory to the Company and the
Warrant Agent.]
(c) No service charge shall be made for any exchange or registration of
transfer of Warrant Certificates, but the Company may require payment of a sum
sufficient to cover any stamp or other tax or other governmental charge that
may be imposed in connection with any such exchange or registration of
transfer.
(d) Whenever any Warrant Certificates are so surrendered for exchange or
registration of transfer, an authorized officer of the Warrant Agent shall
manually countersign and deliver to the person or persons entitled thereto a
Warrant Certificate or Warrant Certificates, duly authorized and executed by
the
8
Company, as so requested. The Warrant Agent shall not effect any exchange or
registration of transfer which will result in the issuance of a Warrant
Certificate, evidencing a fraction of a Warrant or a number of full Warrants
and a fraction of a Warrant.
(e) All Warrant Certificates issued upon any exchange or registration of
transfer of Warrant Certificates shall be the valid obligations of the Company,
evidencing the same obligations, and entitled to the same benefits under this
Agreement, as the Warrant Certificates surrendered for such exchange or
registration or transfer.
SECTION 4.02. Treatment of Holders of Warrant Certificates. Each Holder of
a Warrant Certificate, by accepting the same, consents and agrees with the
Company, the Warrant Agent and every subsequent Holder of such Warrant
Certificate that until the transfer of such Warrant Certificate is registered
on the books of such Warrant Agent, the Company and the Warrant Agent may treat
the registered Holder of such Warrant Certificate as the absolute owner thereof
for any purpose and as the person entitled to exercise the rights represented
by the Warrants evidenced thereby, any notice to the contrary notwithstanding.
SECTION 4.03. Cancellation of Warrant Certificates. [(a)] Any Warrant
Certificate surrendered for exchange or registration of transfer or exercise of
the Warrants evidenced thereby shall, if surrendered to the Company, be
delivered to the Warrant Agent, and all Warrant Certificates surrendered or so
delivered to the Warrant Agent shall be promptly cancelled by the Warrant Agent
and shall not be reissued and, except as expressly permitted by this Agreement,
no Warrant Certificate shall be issued hereunder in exchange therefor or in
lieu thereof. The Warrant Agent shall cause all cancelled Warrant Certificates
to be destroyed and shall deliver a certificate of such destruction to the
Company.
[(b) If the Company notifies the relevant Trustee of its election to
redeem [, as a whole but not in part,] the Warrant Securities pursuant to the
Indenture or the terms thereof, the Company may elect, and shall give notice to
the Warrant Agent of its election, to cancel the unexercised Warrants, the
Warrant Certificates and the rights evidenced thereby. Promptly after receipt
of such notice by the Warrant Agent, the Company shall, or, at the Company's
request, the Warrant Agent shall in the name of and at the expense of the
Company, give notice of such cancellation to the Holders of the Warrant
Certificates, such notice to be so given not less than 30 nor more than 60 days
prior to the date fixed for the redemption of the Warrant Securities pursuant
to the Indenture or the terms thereof. The unexercised Warrants, the Warrant
Certificates and the rights evidenced thereby shall be cancelled and become
void on the 15th day prior to such date fixed for redemption.]
9
ARTICLE 5
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent. The Company hereby appoints as Warrant Agent
of the Company in respect of the Warrants and the Warrant Certificates upon the
terms and subject to the conditions herein and in the Warrant Certificates set
forth; and hereby accepts such appointment. The Warrant Agent shall have
the powers and authority granted to and conferred upon it in the Warrant
Certificates and herein and such further powers and authority to act on behalf
of the Company as the Company may hereafter grant to or confer upon it. All of
the terms and provisions with respect to such powers and authority contained in
the Warrant Certificates are subject to and governed by the terms and
provisions hereof.
SECTION 5.02. Conditions of Warrant Agent's Obligations. The Warrant Agent
accepts its obligations herein set forth upon the terms and conditions hereof,
including the following, to all of which the Company agrees and to all of which
the rights hereunder of the Holders from time to time of the Warrant
Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees promptly to pay
the Warrant Agent the compensation to be agreed upon with the Company for all
services rendered by the Warrant Agent and to reimburse the Warrant Agent for
reasonable out-of-pocket expenses (including reasonable attorneys' fees)
incurred by the Warrant Agent without negligence, bad faith or breach of this
Agreement on its part in connection with the services rendered hereunder by the
Warrant Agent. The Company also agrees to indemnify the Warrant Agent for, and
to hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Warrant Agent, arising out of or in
connection with its acting as Warrant Agent hereunder, as well as the
reasonable costs and expenses of defending against any claim of such liability.
(b) Agent for the Company. In acting under this Agreement and in
connection with the Warrants and the Warrant Certificates, the Warrant Agent is
acting solely as agent of the Company and does not assume any obligation or
relationship of agency or trust for or with any of the Holders of Warrant
Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel satisfactory to it
in its reasonable judgment, and the advice of such counsel shall be full and
complete authorization and protection in respect of any action taken, suffered
or
10
omitted by it hereunder in good faith and in accordance with the advice of such
counsel.
(d) Documents. The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken or thing suffered by it in
reliance upon any Warrant Certificate, notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and its officers, directors
and employees, may become the owner of, or acquire any interest in, Warrants,
with the same rights that it or they would have if it were not the Warrant
Agent hereunder, and, to the extent permitted by applicable law, it or they may
engage or be interested in any financial or other transaction with the Company
and may act on, or as depositary, trustee or agent for, any committee or body
of holders of Warrant Securities or other obligations of the Company as freely
as if it were not the Warrant Agent hereunder. [Nothing in this Warrant
Agreement shall be deemed to prevent the Warrant Agent from acting as Trustee
under the Indenture.]
(f) No Liability for Interest. The Warrant Agent shall have no liability
for interest on any monies at any time received by it pursuant to any of the
provisions of this Agreement or of the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall not be under any
responsibility with respect to the validity or sufficiency of this Agreement or
the execution and delivery hereof (except the due authorization to execute this
Agreement and the due execution and delivery hereof by the Warrant Agent) or
with respect to the validity or execution of any Warrant Certificates (except
its countersignature thereof).
(h) No Liability for Recitals. The recitals contained herein shall be
taken as the statements of the Company and the Warrant Agent assumes no
liability for the correctness of the same.
(i) No Implied Obligations. The Warrant Agent shall be obligated to
perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read into
this Agreement or the Warrant Certificates against the Warrant Agent. The
Warrant Agent shall not be under any obligation to take any action hereunder
which may tend to involve it in any expense or liability, the payment of which
within a reasonable time is not, in its reasonable opinion, assured to it. The
Warrant Agent shall not be accountable or under any duty or responsibility for
the use by the Company of any of the Warrant Certificates countersigned by the
Warrant Agent and delivered by
11
it to the Company pursuant to this Agreement or for the application by the
Company of the proceeds of the Warrant Certificates. The Warrant Agent shall
have no duty or responsibility in case of any default by the Company in the
performance of its covenants or agreements contained herein or in the Warrant
Certificates or in the case of the receipt of any written demand from a Holder
of a Warrant Certificate with respect to such default, including, without
limiting the generality of the foregoing, any duty or responsibility to
initiate or attempt to initiate any proceedings at law or otherwise or, except
as provided in Section 6.02, to make any demand upon the Company.
SECTION 5.03. Resignation and Appointment of Successor. (a) The Company
agrees, for the benefit of the Holders from time to time of the Warrant
Certificates, that there shall at all times be a Warrant Agent hereunder until
all the Warrants have been exercised or are no longer exercisable.
(b) The Warrant Agent may at any time resign as such by giving written
notice of its resignation to the Company, specifying the desired date on which
its resignation shall become effective; provided, however, that such date shall
be not less than 90 days after the date on which such notice is given unless
the Company agrees to accept shorter notice. Upon receiving such notice of
resignation, the Company shall promptly appoint a successor Warrant Agent
(which shall be a bank or trust company in good standing, authorized under the
laws of the jurisdiction of its organization to exercise corporate trust
powers) by written instrument in duplicate signed on behalf of the Company, one
copy of which shall be delivered to the resigning Warrant Agent and one copy to
the successor Warrant Agent. The Company may, at any time and for any reason,
remove the Warrant Agent and appoint a successor Warrant Agent (qualified as
aforesaid) by written instrument in duplicate signed on behalf of the Company
and specifying such removal and the date when it is intended to become
effective, one copy of which shall be delivered to the Warrant Agent being
removed and one copy to the successor Warrant Agent. Any resignation or removal
of the Warrant Agent and any appointment of a successor Warrant Agent shall
become effective upon acceptance of appointment by the successor Warrant Agent
as provided in this subsection (b). In the event a successor Warrant Agent has
not been appointed and accepted its duties within 90 days of the Warrant
Agent's notice of resignation, the Warrant Agent may apply to any court of
competent jurisdiction for the designation of a successor Warrant Agent. Upon
its resignation or removal, the Warrant Agent shall be entitled to the payment
by the Company of the compensation and to the reimbursement of all reasonable
out-of-pocket expenses (including reasonable attorneys' fees) incurred by it
hereunder as agreed to in Section 5.02(a).
12
(c) The Company shall remove the Warrant Agent and appoint a successor
Warrant Agent if the Warrant Agent (i) shall become incapable of acting, (ii)
shall be adjudged bankrupt or insolvent, (iii) shall commence a voluntary case
or other proceeding seeking liquidation, reorganization or other relief with
respect to it or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, (iv) shall consent to, or shall have had
entered against it a court order for, any such relief or to the appointment of
or taking possession by any such official in any involuntary case or other
proceedings commenced against it, (v) shall make a general assignment for the
benefit of creditors or (vi) shall fail generally to pay its debts as they
become due. Upon the appointment as aforesaid of a successor Warrant Agent and
acceptance by it of such appointment, the predecessor Warrant Agent shall, if
not previously disqualified by operation of law, cease to be Warrant Agent
hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with
all the authority, rights, powers, immunities, duties and obligations of such
predecessor with like effect as if originally named as Warrant Agent hereunder,
and such predecessor shall thereupon become obligated to transfer, deliver and
pay over, and such successor Warrant Agent shall be entitled to receive, all
monies, securities and other property on deposit with or held by such
predecessor as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be merged
or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation
to which the Warrant Agent shall sell or otherwise transfer all or
substantially all the assets and business of the Warrant Agent, provided that
it shall be qualified as aforesaid, shall be the successor Warrant Agent under
this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto.
13
ARTICLE 6
MISCELLANEOUS
SECTION 6.01. Amendment. This Agreement and the terms of the Warrants and
the Warrant Certificates may be amended by the parties hereto, without the
consent of the Holder of any Warrant Certificate or the beneficial owner of any
Warrant, for the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective or inconsistent provision contained herein or in
the Warrant Certificates, or making any other provisions with respect to
matters or questions arising under this Agreement as the Company and the
Warrant Agent may deem necessary or desirable, provided that such action shall
not affect adversely the interests of the Holders of the Warrant Certificates
or the beneficial owners of Warrants in any material respect.
SECTION 6.02. Notices and Demands to the Company and Warrant Agent. If the
Warrant Agent shall receive any notice or demand addressed to the Company by
the Holder of a Warrant Certificate pursuant to the provisions of the Warrant
Certificates, the Warrant Agent shall promptly forward such notice or demand to
the Company.
SECTION 6.03. Addresses. Any communication from the Company to the Warrant
Agent with respect to this Agreement shall be addressed to , Attention:
_____________, and any communication from the Warrant Agent to the Company with
respect to this Agreement shall be addressed to Texas Instruments Incorporated,
12500 TI Boulevard, Dallas, Texas, 75266-0199, Attention: ______________ (or
such other address as shall be specified in writing by the Warrant Agent or by
the Company).
SECTION 6.04. Applicable Law. The validity, interpretation and performance
of this Agreement and each Warrant Certificate issued hereunder and of the
respective terms and provisions hereof and thereof shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 6.05. Delivery of Prospectus. The Company will furnish to the
Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the Holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with the delivery of the Warrant Securities issued
upon such exercise, a Prospectus. The Warrant Agent shall not, by reason of any
such delivery, assume any responsibility for the accuracy or adequacy of such
Prospectus.
14
SECTION 6.06. Obtaining of Governmental Approval. The Company will from
time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under United States federal and
state laws (including without limitation a registration statement in respect of
the Warrants and Warrant Securities under the Securities Act of 1933), which
may be or become requisite in connection with the issuance, sale, transfer and
delivery of the Warrant Certificates, the exercise of the Warrants, the
issuance, sale, transfer and delivery of the Warrant Securities issued upon
exercise of the Warrants or upon the expiration of the period during which the
Warrants are exercisable.
SECTION 6.07. Persons Having Rights Under Warrant Agreement. Nothing in
this Agreement shall give to any person other than the Company, the Warrant
Agent and the Holders of the Warrant Certificates any right, remedy or claim
under or by reason of this Agreement.
SECTION 6.08. Headings. The descriptive headings of the several Articles
and Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
SECTION 6.09. Counterparts. This Agreement may be executed in any number
of counterparts, each of which as so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
SECTION 6.10. Inspection of Agreement. A copy of this Agreement shall be
available at all reasonable times at the principal corporate trust office of
the Warrant Agent for inspection by the Holder of any Warrant Certificate. The
Warrant Agent may require such Holder to submit his Warrant Certificate for
inspection by it.
SECTION 6.11. Notices to Holders of Warrants. Any notice to Holders of
Warrants evidenced by Warrant Certificates which by any provisions of this
Warrant Agreement is required or permitted to be given shall be given by first
class mail prepaid at such Holder's address as it appears on the books of the
Warrant Agent.
15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and their respective corporate seals to be hereunto affixed and
attested, all as of the date first above written.
TEXAS INSTRUMENTS
INCORPORATED
By__________________________
Name:
Title:
[WARRANT AGENT]
By__________________________
Name:
Title:
16
EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
[Face]
Form of Legend if [Prior to ________________,
Warrants are not Warrants evidenced by this
immediately exercisable: Warrant Certificate cannot
be exercised.]
EXERCISABLE ONLY IF AUTHENTICATED BY THE WARRANT
AGENT AS PROVIDED HEREIN
VOID AFTER THE CLOSE OF BUSINESS ON _________, ____
TEXAS INSTRUMENTS INCORPORATED
Warrant Certificate representing
Warrants to purchase
[Title of Warrant Securities]
as described herein
------------------------------------
No. _______________ Warrants
This certifies that [_____________________] or registered assigns is the
registered owner of the above indicated number of Warrants, each Warrant
entitling such registered owner to purchase, at any time [after the close of
business on _________, ____, and] on or before the close of business on
____________, ____, [____ shares of the [Title of Warrant Securities]]
[$________ aggregate principal amount of [Title of Warrant Securities]](the
"Warrant Securities") of Texas Instruments Incorporated (the "Company") [,
issued or to be issued under the Indenture (as hereinafter defined),] on the
following basis.2 [During the period from ________, ____ through and including
___________, ____, each Warrant shall entitle the Holder thereof, subject to
the provisions of this Agreement, to purchase from the Company the [principal]
amount of Warrant Securities stated
- --------
2 Complete and modify the following provisions as appropriate to reflect
the terms of the Warrants and the Warrant Securities.
A-1
above in this Warrant Certificate at the exercise price of [ ] [___% of the
principal amount thereof [plus accrued amortization, if any, of the original
issue discount of the Warrant Securities][plus accrued interest, if any, from
the most recent date from which interest shall have been paid on the Warrant
Securities or, if no interest shall have been paid on the Warrant Securities,
from ___________, ____]; [in each case, the original issue discount ($_______
for each $1,000 principal amount of Warrant Securities) will be amortized at a
___% annual rate, computed on a[n] [semi-]annual basis[, using a 360-day year
constituting of twelve 30-day months]] (the "Exercise Price"). The Holder of
this Warrant Certificate may exercise the Warrants evidenced hereby, in whole
or in part, by surrendering this Warrant Certificate, with the purchase form
set forth hereon duly completed, accompanied [by payment in full, in lawful
money of the United States of America, [in cash or by certified check or
official bank check in New York Clearing House funds] [by bank wire transfer in
immediately available funds]], the Exercise Price for each Warrant exercised,
to the Warrant Agent (as hereinafter defined), at the corporate trust office of
[name of Warrant Agent], or its successor as warrant agent (the "Warrant
Agent") [or at ____________,] at the addresses specified on the reverse hereof
and upon compliance with and subject to the conditions set forth herein and in
the Warrant Agreement (as hereinafter defined). This Warrant Certificate may be
exercised only for the purchase of [ shares of] Warrant Securities [in the
principal amount of ] or any integral multiple thereof. [Cashless Exercise
Option].
The term "Holder" as used herein shall mean the person in whose name at
the time such Warrant Certificate shall be registered upon the books to be
maintained by the Warrant Agent for that purpose pursuant to Section 3.01 of
the Warrant Agreement.
Any whole number of Warrants evidenced by this Warrant Certificate may be
exercised to purchase Warrant Securities in registered form. Upon any exercise
of fewer than all of the Warrants evidenced by this Warrant Certificate, there
shall be issued to the registered owner hereof a new Warrant Certificate
evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of __________, ____ (the "Warrant Agreement"),
between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the Holder of this Warrant Certificate consents by acceptance
hereof. Copies of the Warrant Agreement are on file at the above-mentioned
office of the Warrant Agent [and at _______________].
A-2
[The Warrant Securities to be issued and delivered upon the exercise of
Warrants evidenced by this Warrant Certificate will be issued under and in
accordance with an Indenture, dated as of ________________ (the "Indenture"),
between the Company and ________________, a [corporation] [national banking
association] organized under the laws of the State of __________, as trustee
(such trustee, and any successors to such trustee, the "Trustee") and will be
subject to the terms and provisions contained in the Warrant Securities and in
the Indenture. Copies of the Indenture, including the form of the Warrant
Securities, are on file at the corporate trust office of the Trustee [and at
].]
This Warrant Certificate, and all rights hereunder, may be transferred
when surrendered at the corporate trust office of the Warrant Agent [or
_________] by the registered owner or his assigns, in person or by an attorney
duly authorized in writing, in the manner and subject to the limitations
provided in the Warrant Agreement.
After authentication by the Warrant Agent and prior to the expiration of
this Warrant Certificate, this Warrant Certificate may be exchanged at the
corporate trust office of the Warrant Agent [or at _____________] for Warrant
Certificates representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the registered owner hereof to
any of the rights of a registered holder of the Warrant Securities, including,
without limitation, [the right to receive payments of principal of (and
premium, if any) or interest, if any, on the Warrant Securities or to enforce
any of the covenants of the Indenture] [the right to receive dividend payments
on the Warrant Securities or any voting rights].
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Warrant Certificate shall not be valid or obligatory for any purpose
until authenticated by the Warrant Agent.
A-3
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
duly executed under its corporate seal.
Dated: _____________
TEXAS INSTRUMENTS INCORPORATED
By_________________________________
Attest:
- --------------------------------------------
Certificate of Authentication
This is one of the Warrant Certificates referred to in the
within-mentioned Warrant Agreement.
- --------------------------------------------
As Warrant Agent
By
------------------------------------------
Authorized Signature
A-4
[REVERSE] [FORM OF WARRANT CERTIFICATE]
(Instructions for Exercise of Warrants)
To exercise any Warrants evidenced hereby, the Holder of this Warrant
Certificate must pay [in cash or by certified check or official bank check in
New York Clearing House funds or by bank wire transfer in immediately available
funds], the Exercise Price in full for each of the Warrants exercised, to
_________, Corporate Trust Department, _______________, Attn: ___________ [or
________________], which payment should specify the name of the Holder of this
Warrant Certificate and the number of Warrants exercised by such Holder. In
addition, the Holder of this Warrant Certificate should complete the
information required below and present in person or mail by registered mail
this Warrant Certificate to the Warrant Agent at the addresses set forth below.
[FORM OF EXERCISE]
(To be executed upon exercise of Warrants.)
The undersigned hereby irrevocably elects to exercise _________ Warrants,
represented by this Warrant Certificate, to purchase [_______ shares of [Title
of Equity Securities]] [$_________ aggregate principal amount of the [Title of
Debt Securities]] (the "Warrant Securities") of Texas Instruments Incorporated
and represents that he has tendered payment for such Warrant Securities [in
cash or by certified check or official bank check in New York Clearing House
funds or by bank wire transfer in immediately available funds] to the order of
Texas Instruments Incorporated, c/o Treasurer in the amount of $___________ in
accordance with the terms hereof. The undersigned requests that said
[principal] amount of Warrant Securities be in fully registered form, in the
authorized denominations, registered in such names and delivered, all as
specified in accordance with the instructions set forth below.
If said [principal] amount of Warrant Securities is less than all of the
Warrant Securities purchasable hereunder, the undersigned requests that a new
Warrant Certificate representing the remaining balance of the Warrants
evidenced hereby be issued and delivered to the undersigned unless otherwise
specified in the instructions below.
Dated:
Name
--------------------------------
(Please Print)
- --------------------------------------------
(Insert Social Security or Other
Identifying Number of Holder) Address
-----------------------------
A-5
----------------------------------
Signature
----------------------------------
(Signed exactly as name appears
on the other side of this Warrant
Certificate)
This Warrant may be exercised at the following addresses:
By hand at ___________________
___________________
___________________
___________________
By mail at ___________________
___________________
___________________
___________________
(Instructions as to form and delivery of Warrant Securities and/or Warrant
Certificates):
A-6
[[FORM OF ASSIGNMENT]
(TO BE EXECUTED TO TRANSFER THE WARRANT CERTIFICATE)
FOR VALUE RECEIVED __________________ hereby sells, assigns and transfers
unto
Please insert social
security or other
identifying number
-----------------------------------
- --------------------------------------------
(Please print name and address
including zip code)
- -------------------------------------------------------------------------------
the right represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint _________________, Attorney, to transfer
said Warrant Certificate on the books of the Warrant Agent with full power of
substitution.
Dated:
-----------------------------------
Signature
(Signed exactly as name appears on the
other side of this Warrant Certificate)
Signature Guarantee:
]
- --------------------------------------------
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Warrant Agent)
A-7
EXHIBIT 4.9
[Form of Warrant Agreement
For Warrant Sold Attached
To Securities]
TEXAS INSTRUMENTS INCORPORATED
and
---------------------,
as Warrant Agent
--------------------------
WARRANT AGREEMENT
Dated as of ________________
----------------------------
Warrants to Purchase ________
----------------------------
TABLE OF CONTENTS
----------------------
PAGE
----
ARTICLE 1
ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY OF WARRANT
CERTIFICATES
SECTION 1.01. Issuance of Warrants...........................................2
SECTION 1.02. Execution and Delivery of Warrant Certificates.................2
SECTION 1.03. Issuance of Warrant Certificates...............................3
ARTICLE 2
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price..................................................4
SECTION 2.02. Duration of Warrants...........................................5
SECTION 2.03. Exercise of Warrants...........................................5
ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT
SECTION 3.01. No Rights as Warrant Securityholder Conferred by
Warrant or Warrant Certificates......................................7
SECTION 3.02. Lost, Mutilated, Stolen, or Destroyed Warrant Certificates.....7
SECTION 3.03. Enforcement of Rights..........................................7
SECTION 3.04. Merger, Consolidation, Conveyance or Transfer..................8
ARTICLE 4
EXCHANGE AND TRANSFER
SECTION 4.01. Exchange and Transfer...........................................8
SECTION 4.02. Treatment of Holders of Warrant Certificates....................9
SECTION 4.03. Cancellation of Warrant Certificates...........................10
ARTICLE 5
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent..................................................10
SECTION 5.02. Conditions of Warrant Agent's Obligations......................11
SECTION 5.03. Resignation and Appointment of Successor.......................12
PAGE
----
ARTICLE 6
MISCELLANEOUS
SECTION 6.01. Amendment......................................................14
SECTION 6.02. Notices and Demands to the Company and Warrant Agent...........14
SECTION 6.03. Addresses......................................................15
SECTION 6.04. Applicable Law.................................................15
SECTION 6.05. Delivery of Prospectus.........................................15
SECTION 6.06. Obtaining of Governmental Approval.............................15
SECTION 6.07. Persons Having Rights under Warrant Agreement..................15
SECTION 6.08. Headings.......................................................15
SECTION 6.09. Counterparts...................................................16
SECTION 6.10. Inspection of Agreement........................................16
SECTION 6.11. Notices to Holders of Warrants.................................16
TESTIMONIUM...................................................................
SIGNATURES....................................................................
EXHIBIT A - Form of Warrant Certificate
ii
WARRANT AGREEMENT1
THIS AGREEMENT dated as of between TEXAS INSTRUMENTS INCORPORATED, a
corporation duly organized and existing under the laws of the State of Delaware
(the "Company"), and , a [bank] [trust company] duly incorporated and
existing under the laws of , as Warrant Agent (the "Warrant Agent"),
Bracketed language here and throughout this Agreement should be inserted
as follows:
1. If Warrants are immediately detachable from the Offered Securities; and
2. If Warrants are detachable from the Offered Securities only after the
Detachable Date.
W I T N E S S E T H :
[WHEREAS, the Company has entered into an Indenture dated as of July 15,
1996 (the "Senior Indenture") between the Company and Citibank, N.A., as
Trustee (the "Senior Indenture Trustee"), and an Indenture dated as of December
16, 1999 (the "Subordinated Indenture") between the Company and Chase Bank of
Texas, National Association, as Trustee (the "Subordinated Indenture Trustee")
(together, the "Trustees" or "Trustee" and "Indentures" or "Indenture"),
providing for the issuance from time to time of its unsecured debt securities
to be issued in one or more series as provided in the Indenture; and]
WHEREAS, the Company proposes to sell [title of such securities being
offered] (the "Offered Securities") with one or more warrants (the "Warrants")
representing the right to purchase [title of such securities purchasable
through exercise of Warrants] (the "Warrant Securities"), the Warrants to be
evidenced by Warrant certificates issued pursuant to this Agreement (the
"Warrant Certificates"); and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company in connection with the issuance, transfer, exchange, exercise and
replacement of the Warrant Certificates, and in this Agreement wishes to set
forth, among other things, the form and provisions of the Warrant Certificates
and the
- --------
1 Complete or modify the provisions of this form as appropriate to reflect
the terms of the Warrants and Warrant Securities. Monetary amounts may be in
U.S. dollars in a foreign currency or in a composite currency, including but
not limited to the euro.
terms and conditions on which they may be issued, transferred, exchanged,
exercised and replaced;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE 1
ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY OF WARRANT
CERTIFICATES
SECTION 1.01. Issuance of Warrants. Issuance of Warrants. The Warrants
shall be evidenced by one or more Warrant Certificates. Each Warrant evidenced
thereby shall represent the right, subject to the provisions contained herein
and therein, to purchase [_____ shares of the Warrant Securities] [ aggregate
principal amount of Warrant Securities ] and shall be initially issued in
connection with the issuance of the Offered Securities [1: and shall be
separately transferable immediately thereafter] [2: but shall not be separately
transferable until on and after , (the "Detachable Date")]. The Warrants
shall be initially issued [in units] with the Offered Securities, and each
Warrant [included in such a unit] shall evidence the right, subject to the
provisions contained herein and in the Warrant Certificates, to purchase [_____
shares of the Warrant Securities] [ aggregate principal amount of Warrant
Securities] [included in such a unit].
SECTION 1.02. Execution and Delivery of Warrant Certificates. Each
Warrant, whenever issued, shall be evidenced by a Warrant Certificate in
registered form, substantially in the form set forth in Exhibit A hereto, shall
be dated and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the officers of the Company executing the
same may approve (execution thereof to be conclusive evidence of such approval)
and as are not inconsistent with the provisions of this Agreement, or 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 stock exchange on which the
Warrants may be listed, or to conform to usage. The Warrant Certificates shall
be signed on behalf of the Company by its chairman or vice chairman of the
Board of Directors, the president, any managing director or the treasurer of
the Company, in each case under its corporate seal, which may but need not be,
attested by its Secretary or one of its Assistant Secretaries. Such signatures
may be manual or facsimile signatures of such authorized officers and may be
imprinted or otherwise reproduced on the Warrant Certificates. The corporate
seal of the Company may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the Warrant
Certificates.
2
No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the Warrant Agent by manual signature. Such signature by the
Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence, and the only evidence, that the Warrant Certificate so
countersigned has been duly issued hereunder.
In case any officer of the Company who shall have signed any of the
Warrant Certificates either manually or by facsimile signature shall cease to
be such officer before the Warrant Certificates so signed shall have been
countersigned and delivered by the Warrant Agent as provided herein, such
Warrant Certificates may be countersigned and delivered notwithstanding that
the person who signed such Warrant Certificates ceased to be such officer of
the Company; and any Warrant Certificate may be signed on behalf of the Company
by such persons as, at the actual date of the execution of such Warrant
Certificate, shall be the proper officers of the Company, although at the date
of the execution of this Agreement any such person was not such officer.
The term "Holder", when used with respect to any Warrant Certificate,
shall mean any person in whose name at the time such Warrant Certificate shall
be registered upon the books to be maintained by the Warrant Agent for that
purpose [2: or, prior to the Detachable Date, any person in whose name at the
time the Offered Security to which such Warrant Certificate is attached is
registered upon the register of the Offered Securities. Prior to the Detachable
Date, the Company will, or will cause the registrar of the Offered Securities
to, make available at all times to the Warrant Agent such information as to
holders of the Offered Securities with Warrants as may be necessary to keep the
Warrant Agent's records up to date.]
SECTION 1.03. Issuance of Warrant Certificates. Warrant Certificates
evidencing the right to purchase [_____ shares of the Warrant Securities] [an
aggregate principal amount not exceeding aggregate principal amount of Warrant
Securities] (except as provided in Sections 2.03, 3.02 and 4.01) may be
executed by the Company and delivered to the Warrant Agent upon the execution
of this Warrant Agreement or from time to time thereafter. The Warrant Agent
shall, upon receipt of Warrant Certificates duly executed on behalf of the
Company, countersign Warrant Certificates evidencing ___________ Warrants
representing the right to purchase up to [_____shares of the Warrant
Securities] [ aggregate principal amount of Warrant Securities] and shall
deliver such Warrant Certificates to or upon the order of the Company.
Subsequent to such original issuance of the Warrant Certificates, the Warrant
Agent shall countersign a Warrant Certificate only if the Warrant Certificate
is issued in exchange or substitution for one or more previously countersigned
Warrant Certificates or in
3
connection with their transfer as hereinafter provided or as provided in the
antepenultimate paragraph of Section 2.03.
Pending the preparation of definitive Warrant Certificates evidencing
Warrants, the Company may execute and the Warrant Agent shall countersign and
deliver temporary Warrant Certificates evidencing such Warrants (printed,
lithographed, typewritten or otherwise produced, in each case in form
satisfactory to the Warrant Agent). Such temporary Warrant Certificates shall
be issuable substantially in the form of the definitive Warrant Certificates
but with such omissions, insertions and variations as may be appropriate for
temporary Warrant Certificates, all as may be determined by the Company with
the concurrence of the Warrant Agent. Such temporary Warrant Certificates may
contain such reference to any provisions of this Warrant Agreement as may be
appropriate. Every such temporary Warrant Certificate shall be executed by the
Company and shall be countersigned by the Warrant Agent upon the same
conditions and in substantially the same manner, and with like effect, as the
definitive Warrant Certificates. Without unreasonable delay, the Company shall
execute and shall furnish definitive Warrant Certificates and thereupon such
temporary Warrant Certificates may be surrendered in exchange therefor without
charge pursuant to and subject to the provisions of Section 4.01, and the
Warrant Agent shall countersign and deliver in exchange for such temporary
Warrant Certificates definitive Warrant Certificates of authorized
denominations evidencing a like aggregate number of Warrants evidenced by such
temporary Warrant Certificates. Until so exchanged, such temporary Warrant
Certificates shall be entitled to the same benefits under this Warrant
Agreement as definitive Warrant Certificates.
ARTICLE 2
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price. On , the exercise price of
each Warrant will be . During the period from , through and
including , , the exercise price of each Warrant will be
[plus [accrued amortization of the original issue discount] [accrued interest]
from , .] On , the exercise price of each Warrant
will be . During the period from , through and including
, , the exercise price of each Warrant will be [plus
[accrued amortization of the original issue discount] [accrued interest] from
, .] [In each case, the original issue discount will be
amortized at a % annual rate, computed on an annual basis using the
"interest" method and using a 360- day year consisting of twelve 30-day months].
Such exercise price of Warrant Securities is referred to in this Agreement as
the "Warrant Price". [The original issue discount for each principal amount of
Warrant Securities is ].
4
SECTION 2.02. Duration of Warrants. Subject to Section 4.03(b), each
Warrant may be exercised [in whole but not in part] [in whole or in part] [at
any time, as specified herein, on or after [the date thereof] [ , ]
and at or before [time, location] on , (each day during such period
may hereinafter be referred to as an "Exercise Date")] [on [list of specific
dates] (each, an "Exercise Date")], or such later date as the Company may
designate by notice to the Warrant Agent and the Holders of Warrant Certificates
[in registered form and to the beneficial owners of the Global Warrant
Certificate] (the "Expiration Date"). Each Warrant not exercised at or before
[time, location] on the Expiration Date shall become void, and all rights of the
Holder [and any beneficial owners] of the Warrant Certificate evidencing such
Warrant under this Agreement shall cease.
SECTION 2.03. Exercise of Warrants. During the period specified in Section
2.02, any whole number of Warrants may be exercised by providing certain
information as set forth on the reverse side of the Warrant Certificates
evidencing such Warrants and by paying in full [in lawful money of the United
States of America] [in applicable currency] [in cash] [by certified check or
official bank check or by bank wire transfer, in each case,] [by bank wire
transfer] [in immediately available funds,] the Warrant Price for each Warrant
exercised [(plus accrued interest, if any, on the Warrant Securities to be
issued upon exercise of such Warrant from and including the Interest Payment
Date (as defined in the Indenture), if any, in respect of such Warrant
Securities immediately preceding the Exercise Date to and including the
Exercise Date (unless the Exercise Date is after the Regular Record Date (as
defined in the Indenture), if any, for such Interest Payment Date, but on or
before the immediately succeeding Interest Payment Date for such Warrant
Securities, in which event no such accrued interest shall be payable in respect
of Warrant Securities to be issued in registered form))] to the Warrant Agent
at its corporate trust office at [address] [or at ], provided that such
exercise is subject to receipt within five business days of such [payment]
[wire transfer] by the Warrant Agent of the Warrant Certificate evidencing each
Warrant exercised with the form of election to purchase Warrant Securities set
forth on the reverse side of the Warrant Certificate properly completed and
duly executed. [Cashless Exercise Option]
The date on which payment in full of the Warrant Price (plus any such
accrued interest) is received by the Warrant Agent shall, subject to receipt of
the Warrant Certificate as aforesaid, be deemed to be the date on which the
Warrant is exercised. The Warrant Agent shall deposit all funds received by it
in payment for the exercise of Warrants in an account of the Company maintained
with it (or in such other account as may be designated by the Company) and
shall advise the Company, by telephone or by facsimile transmission or other
form of electronic communication available to both parties, at the end of each
day on which a payment for the exercise of Warrants is received of the amount
so deposited to its
5
account. The Warrant Agent shall promptly confirm such advice to the Company
in writing.
If a day on which Warrants may be exercised in the city in which such
Warrants are to be exercised shall be a Saturday or Sunday or a day on which
banking institutions in such city are authorized or required to be closed,
then, notwithstanding any other provision of this Agreement or the Warrant
Certificate evidencing such Warrants, but subject to the limitation that no
Warrant may be exercised after the Expiration Date, the Warrants shall be
exercisable on the next succeeding day which in such city is not a Saturday or
Sunday or a day on which banking institutions in such city are authorized or
required to be closed.
The Warrant Agent shall, from time to time, as promptly as practicable,
advise the Company and the Trustee in writing of (i) the number of Warrants
exercised, (ii) the instructions of each Holder of the Warrant Certificates
evidencing such Warrants with respect to delivery of the Warrant Securities to
be issued upon such exercise, (iii) delivery of any Warrant Certificates
evidencing the balance, if any, of the Warrants remaining after such exercise,
and (iv) such other information as the Company or the Trustee shall reasonably
require.
As soon as practicable after the exercise of any Warrant, but subject to
receipt by the Warrant Agent of the Warrant Certificate evidencing such Warrant
as provided in this Section, the Company shall issue[, pursuant to the
Indenture, in authorized denominations to or upon the order of the Holder of
the Warrant Certificate evidencing each Warrant,] the Warrant Securities to
which such Holder is entitled, in fully registered form, registered in such
name or names as may be directed by such Holder. If fewer than all of the
Warrants evidenced by such Warrant Certificate are exercised, the Company shall
execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, a new Warrant Certificate evidencing the number of
such Warrants remaining unexercised.
The Company shall not be required to pay any stamp or other tax or other
governmental charge required to be paid in connection with any transfer
involved in the issuance of the Warrant Securities, and in the event that any
such transfer is involved, the Company shall not be required to issue or
deliver any Warrant Security until such tax or other charge shall have been
paid or it has been established to the Company's satisfaction that no such tax
or other charge is due.
6
ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT
SECTION 3.01. No Rights as Warrant Securityholder Conferred by Warrant or
Warrant Certificates. No Warrant Certificate or Warrant evidenced thereby shall
entitle the Holder or any beneficial owner thereof to any of the rights of a
holder or beneficial owner of Warrant Securities, including, without
limitation, [the right to receive the payment of principal of (premium, if any)
or interest, if any, on Warrant Securities or to enforce any of the covenants
in the Indenture] [the right to receive dividend payments on the Warrant
Securities or any voting rights].
SECTION 3.02. Lost, Mutilated, Stolen, or Destroyed Warrant Certificates.
Upon receipt by the Warrant Agent of evidence reasonably satisfactory to it and
the Company of the ownership of and the loss, mutilation, theft or destruction
of any Warrant Certificate and of such security or indemnity as may be required
by the Company and the Warrant Agent to hold each of them and any agent of them
harmless and, in the case of mutilation of a Warrant Certificate, upon
surrender thereof to the Warrant Agent for cancellation, then, in the absence
of notice to the Company or the Warrant Agent that such Warrant Certificate has
been acquired by a bona fide purchaser, the Company shall execute, and an
authorized officer of the Warrant Agent shall manually countersign and deliver,
in exchange for or in lieu of the lost, mutilated, stolen or destroyed Warrant
Certificate, a new Warrant Certificate of the same tenor and evidencing a like
number of Warrants. Upon the issuance of any new Warrant Certificate under this
Section, the Company may require the payment of a sum sufficient to cover any
stamp or other tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Warrant
Agent) in connection therewith. Every substitute Warrant Certificate executed
and delivered pursuant to this Section in lieu of any lost, mutilated, stolen
or destroyed Warrant Certificate shall represent an additional contractual
obligation of the Company, whether or not the lost, stolen or destroyed Warrant
Certificate shall be at any time enforceable by anyone, and shall be entitled
to the benefits of this Agreement equally and proportionately with any and all
other Warrant Certificates duly executed and delivered 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 of lost,
mutilated, stolen or destroyed Warrant Certificates.
SECTION 3.03. Enforcement of Rights. Notwithstanding any of the provisions
of this Agreement, any Holder of a Warrant Certificate, without the consent of
the Warrant Agent, the Trustee, the holder of any Offered Securities or the
Holder of any other Warrant Certificate, may, in its own behalf and for its own
benefit, enforce, and may institute and maintain any suit, action or proceeding
7
against the Company suitable to enforce, or otherwise in respect of, its right
to exercise its Warrants in the manner provided in its Warrant Certificate and
in this Agreement.
SECTION 3.04. Merger, Consolidation, Conveyance or Transfer. (a) If at any
time there shall be a merger or consolidation of the Company or a conveyance or
transfer of its property and assets substantially as an entirety [as permitted
under the Indenture], then in any such event the successor or assuming
corporation referred to therein shall succeed to and be substituted for the
Company, with the same effect[, subject to the Indenture,] as if it had been
named herein and in the Warrant Certificates as the Company; the Company shall
thereupon, except in the case of a transfer by way of lease, be relieved of any
further obligation hereunder and under the Warrants and the Warrant
Certificates, and the Company as the predecessor corporation, except in the
case of a transfer by way of lease, may thereupon or at any time thereafter be
dissolved, wound up or liquidated. Such successor or assuming corporation may
thereupon cause to be signed, and may issue either in its own name or in the
name of the Company, Warrant Certificates evidencing any or all of the Warrants
issuable hereunder which theretofore shall not have been signed by the Company,
and may execute and deliver Warrant Securities in its own name [,pursuant to
the Indenture,] in fulfillment of its obligations to deliver Warrant Securities
upon exercise of the Warrants. All the Warrants so issued shall in all respects
have the same legal rank and benefit under this Agreement as the Warrants
theretofore or thereafter issued in accordance with the terms of this Agreement
as though all of such Warrants had been issued at the date of the execution
hereof. In any case of any such merger, consolidation, conveyance or transfer,
such changes in phraseology and form (but not in substance) may be made in the
Warrant Certificates representing the Warrants thereafter to be issued as may
be appropriate.
(b) The Warrant Agent may receive a written opinion of legal counsel (who
shall be acceptable to the Warrant Agent) as conclusive evidence that any such
merger, consolidation, conveyance or transfer complies with the provisions of
this Section and the Indenture.
[Add Anti-Dilution provisions as necessary.]
ARTICLE 4
EXCHANGE AND TRANSFER
SECTION 4.01. Exchange and Transfer. (a) [1: Upon] [2: Prior to the
Detachable Date, a Warrant Certificate may be exchanged or transferred only
together with the Offered Security to which such Warrant Certificate was
initially attached, and only for the purpose of effecting, or in conjunction
with, an
8
exchange or transfer of such Offered Security. Prior to any Detachable Date,
each transfer of the Offered Security, shall operate also to transfer the
related Warrant Certificates. On or after the Detachable Date, upon] surrender
at the corporate trust office of the Warrant Agent at [address] [or ],
Warrant Certificates evidencing Warrants may be exchanged for Warrant
Certificates in other authorized denominations evidencing such Warrants or the
transfer thereof may be registered in whole or in part; provided, however, that
such other Warrant Certificates shall evidence the same aggregate number of
Warrants as the Warrant Certificates so surrendered.
(b) The Warrant Agent shall keep, at its corporate trust office at
[address] [and at ], books in which, subject to such reasonable
regulations as it may prescribe, it shall register Warrant Certificates and
exchanges and transfers of outstanding Warrant Certificates upon surrender of
such Warrant Certificates to the Warrant Agent at its corporate trust office at
[address] [or ] for exchange or registration of transfer, properly
endorsed [or accompanied by appropriate instruments of registration of transfer
and written instructions for transfer, all in form satisfactory to the Company
and the Warrant Agent.]
(c) No service charge shall be made for any exchange or registration of
transfer of Warrant Certificates, but the Company may require payment of a sum
sufficient to cover any stamp or other tax or other governmental charge that
may be imposed in connection with any such exchange or registration of
transfer.
(d) Whenever any Warrant Certificates are so surrendered for exchange or
registration of transfer, an authorized officer of the Warrant Agent shall
manually countersign and deliver to the person or persons entitled thereto a
Warrant Certificate or Warrant Certificates, duly authorized and executed by
the Company, as so requested. The Warrant Agent shall not effect any exchange
or registration of transfer which will result in the issuance of a Warrant
Certificate evidencing a fraction of a Warrant or a number of full Warrants and
a fraction of a Warrant
(e) All Warrant Certificates issued upon any exchange or registration of
transfer of Warrant Certificates shall be the valid obligations of the Company,
evidencing the same obligations, and entitled to the same benefits under this
Agreement, as the Warrant Certificates surrendered for such exchange or
registration or transfer.
SECTION 4.02. Treatment of Holders of Warrant Certificates. Each Holder of
a Warrant Certificate, by accepting the same, consents and agrees with the
Company, the Warrant Agent and every subsequent Holder of such Warrant
Certificate that until the transfer of such Warrant Certificate is registered
on the
9
books of such Warrant Agent [2: or, prior to the Detachable Date, until the
transfer of the Offered Security to which such Warrant Certificate is attached,
is registered in the register of the Offered Securities], the Company and the
Warrant Agent may treat the registered Holder of such Warrant Certificate as
the absolute owner thereof for any purpose and as the person entitled to
exercise the rights represented by the Warrants evidenced thereby, any notice
to the contrary notwithstanding.
SECTION 4.03. Cancellation of Warrant Certificates. [(a)] Any Warrant
Certificate surrendered for exchange or registration of transfer or exercise of
the Warrants evidenced thereby shall, if surrendered to the Company, be
delivered to the Warrant Agent, and all Warrant Certificates surrendered or so
delivered to the Warrant Agent shall be promptly cancelled by the Warrant Agent
and shall not be reissued and, except as expressly permitted by this Agreement,
no Warrant Certificate shall be issued hereunder in exchange therefor or in
1ieu thereof. The Warrant Agent shall cause all cancelled Warrant Certificates
to be destroyed and shall deliver a certificate of such destruction to the
Company.
[(b) If the Company notifies the Trustee of its election to redeem [2:
prior to the Detachable Date] [, as a whole but not in part,] [2: the Offered
Securities [or] [and]] the Warrant Securities pursuant to the Indenture or the
terms thereof, the Company may elect, and shall give notice to the Warrant
Agent of its election, to cancel the unexercised Warrants, the Warrant
Certificates and the rights evidenced thereby. Promptly after receipt of such
notice by the Warrant Agent, the Company shall, or, at the Company's request,
the Warrant Agent shall in the name of and at the expense of the Company, give
notice of such cancellation to the Holders of the Warrant Certificates, such
notice to be so given not less than 30 nor more than 60 days prior to the date
fixed for the redemption of [2: the Offered Securities [or] [and]] the Warrant
Securities pursuant to the Indenture or the terms thereof. The unexercised
Warrants, the Warrant Certificates and the rights evidenced thereby shall be
cancelled and become void on the 15th day prior to such date fixed for
redemption.]
ARTICLE 5
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent. The Company hereby appoints as Warrant Agent
of the Company in respect of the Warrants and the Warrant Certificates upon the
terms and subject to the conditions herein and in the Warrant Certificates set
forth; and hereby accepts such appointment. The Warrant Agent shall have the
powers and authority granted to and conferred upon it in the Warrant
Certificates and herein and such further powers and authority to act on behalf
of the Company as the Company may hereafter grant to or confer upon it.
10
All of the terms and provisions with respect to such powers and authority
contained in the Warrant Certificates are subject to and governed by the terms
and provisions hereof.
SECTION 5.02. Conditions of Warrant Agent's Obligations. The Warrant Agent
accepts its obligations herein set forth upon the terms and conditions hereof,
including the following, to all of which the Company agrees and to all of which
the rights hereunder of the Holders from time to time of the Warrant
Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees promptly to pay
the Warrant Agent the compensation to be agreed upon with the Company for all
services rendered by the Warrant Agent and to reimburse the Warrant Agent for
reasonable out-of-pocket expenses (including reasonable attorneys' fees)
incurred by the Warrant Agent without negligence, bad faith or breach of this
Agreement on its part in connection with the services rendered hereunder by the
Warrant Agent. The Company also agrees to indemnify the Warrant Agent for, and
to hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Warrant Agent, arising out of or in
connection with its acting as Warrant Agent hereunder, as well as the
reasonable costs and expenses of defending against any claim of such liability.
(b) Agent for the Company. In acting under this Agreement and in
connection with the Warrants and the Warrant Certificates, the Warrant Agent is
acting solely as agent of the Company and does not assume any obligation or
relationship of agency or trust for or with any of the Holders of Warrant
Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel satisfactory to it
in its reasonable judgment, and the advice of such 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 accordance with the advice of
such counsel.
(d) Documents. The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken or thing suffered by it in
reliance upon any Warrant Certificate, notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and its officers, directors
and employees, may become the owner of, or acquire any interest in, Warrants,
with the same rights that it or they would have if it were not the Warrant
Agent
11
hereunder, and, to the extent permitted by applicable law, it or they may
engage or be interested in any financial or other transaction with the Company
and may act on, or as depositary, trustee or agent for, any committee or body
of holders of Warrant Securities or other obligations of the Company as freely
as if it were not the Warrant Agent hereunder. [Nothing in this Warrant
Agreement shall be deemed to prevent the Warrant Agent from acting as Trustee
under the Indenture.]
(f) No Liability for Interest. The Warrant Agent shall have no liability
for interest on any monies at any time received by it pursuant to any of the
provisions of this Agreement or of the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall not be under any
responsibility with respect to the validity or sufficiency of this Agreement or
the execution and delivery hereof (except the due authorization to execute this
Agreement and the due execution and delivery hereof by the Warrant Agent) or
with respect to the validity or execution of any Warrant Certificates (except
its countersignature thereof).
(h) No Liability for Recitals. The recitals contained herein shall be
taken as the statements of the Company and the Warrant Agent assumes no
liability for the correctness of the same.
(i) No Implied Obligations. The Warrant Agent shall be obligated to
perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read into
this Agreement or the Warrant Certificates against the Warrant Agent. The
Warrant Agent shall not be under any obligation to take any action hereunder
which may tend to involve it in any expense or liability, the payment of which
within a reasonable time is not, in its reasonable opinion, assured to it. The
Warrant Agent shall not be accountable or under any duty or responsibility for
the use by the Company of any of the Warrant Certificates countersigned by the
Warrant Agent and delivered by it to the Company pursuant to this Agreement or
for the application by the Company of the proceeds of the Warrant Certificates.
The Warrant Agent shall have no duty or responsibility in case of any default
by the Company in the performance of its covenants or agreements contained
herein or in the Warrant Certificates or in the case of the receipt of any
written demand from a Holder of a Warrant Certificate with respect to such
default, including, without limiting the generality of the foregoing, any duty
or responsibility to initiate or attempt to initiate any proceedings at law or
otherwise or, except as provided in Section 6.02, to make any demand upon the
Company.
SECTION 5.03. Resignation and Appointment of Successor. (a) The Company
agrees, for the benefit of the Holders from time to time of the Warrant
12
Certificates, that there shall at all times be a Warrant Agent hereunder until
all the Warrants have been exercised or are no longer exercisable.
(b) The Warrant Agent may at any time resign as such by giving written
notice of its resignation to the Company, specifying the desired date on which
its resignation shall become effective; provided, however, that such date shall
be not less than 90 days after the date on which such notice is given unless
the Company agrees to accept shorter notice. Upon receiving such notice of
resignation, the Company shall promptly appoint a successor Warrant Agent
(which shall be a bank or trust company in good standing, authorized under the
laws of the jurisdiction of its organization to exercise corporate trust
powers) by written instrument in duplicate signed on behalf of the Company, one
copy of which shall be delivered to the resigning Warrant Agent and one copy to
the successor Warrant Agent. The Company may, at any time and for any reason,
remove the Warrant Agent and appoint a successor Warrant Agent (qualified as
aforesaid) by written instrument in duplicate signed on behalf of the Company
and specifying such removal and the date when it is intended to become
effective, one copy of which shall be delivered to the Warrant Agent being
removed and one copy to the successor Warrant Agent. Any resignation or removal
of the Warrant Agent and any appointment of a successor Warrant Agent shall
become effective upon acceptance of appointment by the successor Warrant Agent
as provided in this subsection (b). In the event a successor Warrant Agent has
not been appointed and accepted its duties within 90 days of the Warrant
Agent's notice of resignation, the Warrant Agent may apply to any court of
competent jurisdiction for the designation of a successor Warrant Agent. Upon
its resignation or removal, the Warrant Agent shall be entitled to the payment
by the Company of the compensation and to the reimbursement of all reasonable
out-of-pocket expenses (including reasonable attorneys' fees) incurred by it
hereunder as agreed to in Section 5.02(a).
(c) The Company shall remove the Warrant Agent and appoint a successor
Warrant Agent if the Warrant Agent (i) shall become incapable of acting, (ii)
shall be adjudged bankrupt or insolvent, (iii) shall commence a voluntary case
or other proceeding seeking liquidation, reorganization or other relief with
respect to it or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, (iv) shall consent to, or shall have had
entered against it a court order for, any such relief or to the appointment of
or taking possession by any such official in any involuntary case or other
proceedings commenced against it, (v) shall make a general assignment for the
benefit of creditors or (vi) shall fail generally to pay its debts as they
become due. Upon the appointment as aforesaid of a successor Warrant Agent and
acceptance by it of such appointment, the
13
predecessor Warrant Agent shall, if not previously disqualified by operation of
law, cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with
all the authority, rights, powers, immunities, duties and obligations of such
predecessor with like effect as if originally named as Warrant Agent hereunder,
and such predecessor shall thereupon become obligated to transfer, deliver and
pay over, and such successor Warrant Agent shall be entitled to receive, all
monies, securities and other property on deposit with or held by such
predecessor as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be merged
or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation
to which the Warrant Agent shall sell or otherwise transfer all or
substantially all the assets and business of the Warrant Agent, provided that
it shall be qualified as aforesaid, shall be the successor Warrant Agent under
this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto.
ARTICLE 6
MISCELLANEOUS
SECTION 6.01. Amendment. This Agreement and the terms of the Warrants and
the Warrant Certificates may be amended by the parties hereto, without the
consent of the Holder of any Warrant Certificate or the beneficial owner of any
Warrant, for the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective or inconsistent provision contained herein or in
the Warrant Certificates, or making any other provisions with respect to
matters or questions arising under this Agreement as the Company and the
Warrant Agent may deem necessary or desirable, provided that such action shall
not affect adversely the interests of the Holders of the Warrant Certificates
or the beneficial owners of Warrants in any material respect.
SECTION 6.02. Notices and Demands to the Company and Warrant Agent. If the
Warrant Agent shall receive any notice or demand addressed to the Company by
the Holder of a Warrant Certificate pursuant to the provisions of the Warrant
Certificates, the Warrant Agent shall promptly forward such notice or demand to
the Company.
14
SECTION 6.03. Addresses. Any communication from the Company to the Warrant
Agent with respect to this Agreement shall be addressed to , Attention: , and
any communication from the Warrant Agent to the Company with respect to this
Agreement shall be addressed to Texas Instruments Incorporated, 12500 TI
Boulevard, Dallas, Texas, 75266-0199, Attention: (or such other address as
shall be specified in writing by the Warrant Agent or by the Company).
SECTION 6.04. Applicable Law. The validity, interpretation and performance
of this Agreement and each Warrant Certificate issued hereunder and of the
respective terms and provisions hereof and thereof shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 6.05. Delivery of Prospectus. The Company will furnish to the
Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the Holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with the delivery of the Warrant Securities issued
upon such exercise, a Prospectus. The Warrant Agent shall not, by reason of any
such delivery, assume any responsibility for the accuracy or adequacy of such
Prospectus.
SECTION 6.06. Obtaining of Governmental Approval. The Company will from
time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under United States federal and
state laws (including without limitation a registration statement in respect of
the Warrants and Warrant Securities under the Securities Act of 1933), which
may be or become requisite in connection with the issuance, sale, transfer and
delivery of the Warrant Certificates, the exercise of the Warrants, the
issuance, sale, transfer and delivery of the Warrant Securities issued upon
exercise of the Warrants or upon the expiration of the period during which the
Warrants are exercisable.
SECTION 6.07. Persons Having Rights under Warrant Agreement. Nothing in
this Agreement shall give to any person other than the Company, the Warrant
Agent and the Holders of the Warrant Certificates any right, remedy or claim
under or by reason of this Agreement.
SECTION 6.08. Headings. The descriptive headings of the several Articles
and Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
15
SECTION 6.09. Counterparts. This Agreement may be executed in any number
of counterparts, each of which as so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
SECTION 6.10. Inspection of Agreement. A copy of this Agreement shall be
available at all reasonable times at the principal corporate trust office of
the Warrant Agent for inspection by the Holder of any Warrant Certificate. The
Warrant Agent may require such Holder to submit his Warrant Certificate for
inspection by it.
SECTION 6.11. Notices to Holders of Warrants. Any notice to Holders of
Warrants evidenced by Warrant Certificates which by any provisions of this
Warrant Agreement is required or permitted to be given shall be given by first
class mail prepaid at such Holder's address as it appears on the books of the
Warrant Agent.
16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and their respective corporate seals to be hereunto affixed and
attested, all as of the date first above written.
TEXAS INSTRUMENTS INCORPORATED
By________________________
Name:
Title:
[WARRANT AGENT]
By________________________
Name:
Title:
17
EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
[Face]
Prior to _______________,
this Warrant Certificate may
be transferred or exchanged
if and only if the [Title of
Offered Security] to which it
was initially attached is so
transferred or exchanged.
Form of Legend if [Prior to ________________,
Warrants are not Warrants evidenced by this
immediately exercisable: Warrant Certificate cannot
be exercised.]
EXERCISABLE ONLY IF AUTHENTICATED BY THE WARRANT
AGENT AS PROVIDED HEREIN
VOID AFTER THE CLOSE OF BUSINESS ON _________, ____
TEXAS INSTRUMENTS INCORPORATED
Warrant Certificate representing
Warrants to purchase
[Title of Warrant Securities]
as described herein
------------------------------------
No. _______________ Warrants
This certifies that [_____________________] or registered assigns is the
registered owner of the above indicated number of Warrants, each Warrant
entitling such registered owner to purchase, at any time [after the close of
business on _________, ____, and] on or before the close of business on
____________, ____, [____ shares of the [Title of Warrant Securities]]
[$________ aggregate
A-1
principal amount of [Title of Warrant Securities]] (the "Warrant Securities")
of Texas Instruments Incorporated (the "Company")[, issued or to be issued
under the Indenture (as hereinafter defined),] on the following basis.2 [During
the period from ________, ____ through and including ___________, ____, each
Warrant shall entitle the Holder thereof, subject to the provisions of this
Agreement, to purchase from the Company the [principal] amount of Warrant
Securities stated above in this Warrant Certificate at the exercise price of
[___] [___% of the principal amount thereof [plus accrued amortization, if any,
of the original issue discount of the Warrant Securities][plus accrued
interest, if any, from the most recent date from which interest shall have been
paid on the Warrant Securities or, if no interest shall have been paid on the
Warrant Securities, from ___________, ____]; [in each case, the original issue
discount ($_______ for each $1,000 principal amount of Warrant Securities) will
be amortized at a ___% annual rate, computed on a[n] [semi-]annual basis[,
using a 360-day year constituting of twelve 30-day months]] (the "Exercise
Price"). The Holder of this Warrant Certificate may exercise the Warrants
evidenced hereby, in whole or in part, by surrendering this Warrant
Certificate, with the purchase form set forth hereon duly completed,
accompanied [by payment in full, in lawful money of the United States of
America, [in cash or by certified check or official bank check in New York
Clearing House funds] [by bank wire transfer in immediately available funds]],
the Exercise Price for each Warrant exercised, to the Warrant Agent (as
hereinafter defined), at the corporate trust office of [name of Warrant Agent],
or its successor as warrant agent (the "Warrant Agent") [or at ____________,]
at the addresses specified on the reverse hereof and upon compliance with and
subject to the conditions set forth herein and in the Warrant Agreement (as
hereinafter defined). This Warrant Certificate may be exercised only for the
purchase of [ shares of ] Warrant Securities [in the principal amount of ]
or any integral multiple thereof. [Cashless Exercise Option]
The term "Holder" as used herein shall mean, prior to _________, ____ (the
"Detachable Date"), the registered owner of the Company's [title of Offered
Securities] to which such Warrant Certificate was initially attached, and after
such Detachable Date, the person in whose name at the time such Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose pursuant to Section 3.01 of the Warrant Agreement.
Any whole number of Warrants evidenced by this Warrant Certificate may be
exercised to purchase Warrant Securities in registered form. Upon any exercise
of fewer than all of the Warrants evidenced by this Warrant Certificate,
- --------
2 Complete and modify the following provisions as appropriate to reflect
the terms of the Warrants and the Warrant Securities.
A-2
there shall be issued to the registered owner hereof a new Warrant Certificate
evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of __________, ____ (the "Warrant Agreement"),
between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the Holder of this Warrant Certificate consents by acceptance
hereof. Copies of the Warrant Agreement are on file at the above-mentioned
office of the Warrant Agent [and at _______________].
[The Warrant Securities to be issued and delivered upon the exercise of
Warrants evidenced by this Warrant Certificate will be issued under and in
accordance with an Indenture, dated as of ________________ (the "Indenture"),
between the Company and ________________, a [corporation] [national banking
association] organized under the laws of the State of __________, as trustee
(such trustee, and any successors to such trustee, the "Trustee") and will be
subject to the terms and provisions contained in the Warrant Securities and in
the Indenture. Copies of the Indenture, including the form of the Warrant
Securities, are on file at the corporate trust office of the Trustee [and at
].]
Prior to ___________, ____ (the "Detachable Date"), this Warrant
Certificate may be exchanged or transferred only together with the [title of
Offered Security] (the "Offered Security") to which this Warrant Certificate
was initially attached, and only for the purpose of effecting, or in
conjunction with, an exchange or transfer of such Offered Security.
Additionally, on or prior to the Detachable Date, each transfer of such Offered
Security on the register of the Offered Securities shall operate also to
transfer this Warrant Certificate. After the Detachable Date, this Warrant
Certificate, and all rights hereunder, may be transferred when surrendered at
the corporate trust office of the Warrant Agent [or _________] by the
registered owner or his assigns, in person or by an attorney duly authorized in
writing, in the manner and subject to the limitations provided in the Warrant
Agreement.
Except as provided in the immediately preceding paragraph, after
authentication by the Warrant Agent and prior to the expiration of this Warrant
Certificate, this Warrant Certificate may be exchanged at the corporate trust
office of the Warrant Agent [or at _____________] for Warrant Certificates
representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the registered owner hereof to
any of the rights of a registered holder of the Warrant Securities, including,
without limitation, [the right to receive payments of principal of (and
premium, if
A-3
any) or interest, if any, on the Warrant Securities or to enforce any of the
covenants of the Indenture] [the right to receive dividend payments on the
Warrant Securities or any voting rights].
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Warrant Certificate shall not be valid or obligatory for any purpose
until authenticated by the Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
duly executed under its corporate seal.
Dated: _____________
TEXAS INSTRUMENTS
INCORPORATED
By________________________
Attest:
- --------------------------------------------
Certificate of Authentication
This is one of the Warrant Certificates referred to in the
within-mentioned Warrant Agreement.
- --------------------------------------------
As Warrant Agent
By
------------------------------------------
Authorized Signature
A-4
[REVERSE] [FORM OF WARRANT CERTIFICATE]
(Instructions for Exercise of Warrants)
To exercise any Warrants evidenced hereby, the Holder of this Warrant
Certificate must pay [in cash or by certified check or official bank check in
New York Clearing House funds or by bank wire transfer in immediately available
funds], the Exercise Price in full for each of the Warrants exercised, to
_________, Corporate Trust Department, _______________, Attn: ___________ [or
________________], which payment should specify the name of the Holder of this
Warrant Certificate and the number of Warrants exercised by such Holder. In
addition, the Holder of this Warrant Certificate should complete the
information required below and present in person or mail by registered mail
this Warrant Certificate to the Warrant Agent at the addresses set forth below.
[FORM OF EXERCISE]
(To be executed upon exercise of Warrants.)
The undersigned hereby irrevocably elects to exercise _________ Warrants,
represented by this Warrant Certificate, to purchase [______ shares of [Title
of Warrant Securities]] [$_________ aggregate principal amount of the [Title of
Warrant Securities]] (the "Warrant Securities") of Texas Instruments
Incorporated and represents that he has tendered payment for such Warrant
Securities [in cash or by certified check or official bank check in New York
Clearing House funds or by bank wire transfer in immediately available funds]
to the order of Texas Instruments Incorporated, c/o Treasurer in the amount of
$___________ in accordance with the terms hereof. The undersigned requests that
said [principal] amount of Warrant Securities be in fully registered form, in
the authorized denominations, registered in such names and delivered, all as
specified in accordance with the instructions set forth below.
If said [principal] amount of Warrant Securities is less than all of the
Warrant Securities purchasable hereunder, the undersigned requests that a new
Warrant Certificate representing the remaining balance of the Warrants
evidenced hereby be issued and delivered to the undersigned unless otherwise
specified in the instructions below.
Dated:
Name
--------------------------------
(Please Print)
- --------------------------------------------
(Insert Social Security or Other
Identifying Number of Holder) Address
-----------------------------
A-5
----------------------------------
Signature
----------------------------------
(Signed exactly as name appears
on the other side of this Warrant
Certificate)
This Warrant may be exercised at the following addresses:
By hand at ___________________
___________________
___________________
___________________
By mail at ___________________
___________________
___________________
___________________
(Instructions as to form and delivery of Warrant Securities and/or Warrant
Certificates):
A-6
[[FORM OF ASSIGNMENT]
(TO BE EXECUTED TO TRANSFER THE WARRANT CERTIFICATE)
FOR VALUE RECEIVED __________________ hereby sells, assigns and transfers
unto
Please insert social
security or other
identifying number
----------------------------------
- --------------------------------------------
(Please print name and address
including zip code)
- --------------------------------------------------------------------------------
the right represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint _________________, Attorney, to transfer
said Warrant Certificate on the books of the Warrant Agent with full power of
substitution.
Dated:
------------------------------------
Signature
(Signed exactly as name appears on the
other side of this Warrant Certificate)
Signature Guarantee:
]
- --------------------------------------------
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Warrant Agent)
A-7
Exhibit 5.1
December 15, 1999
Board of Directors
Texas Instruments Incorporated
12500 TI Boulevard
P.O. Box 660199
Dallas, Texas 75266
To the Members of the Board of Directors:
As Senior Vice President, Secretary and General Counsel of Texas Instruments
Incorporated (the "Company"), I am familiar with a registration statement on
Form S-3 (the "Registration Statement") to be filed by the Company with the
Securities and Exchange Commission in connection with the registration under the
Securities Act of 1933, as amended (the "Act"), of up to $1,000,000,000
aggregate principal amount of (i) senior debt securities and subordinated debt
securities (the "Debt Securities"); (ii) warrants to purchase Debt Securities or
other securities or rights (the "Warrants"); (iii) purchase contracts (the
"Purchase Contracts") requiring the holders thereof to purchase or sell (x) the
Company's securities or securities of an entity unaffiliated or affiliated with
the Company, a basket of such securities, an index or indices of such securities
or any combination of the above, (y) currencies or composite currencies, or (z)
commodities; (iv) units consisting of one or more of the foregoing securities
(the "Units"); which Debt Securities, Warrants, Purchase Contracts and Units may
be offered by the Company on a continuous or delayed basis pursuant to Rule 415
under the Act. The Debt Securities may be exchangeable for other Debt
Securities, Warrants, Purchase Contracts or Units, or other securities or
rights.
I have (directly or through attorneys acting under my direction) examined the
Registration Statement, the Indenture (the "Indenture") dated as of July 15,
1996 between the Company and Citibank, N.A., as trustee, the Subordinated
Indenture (the "Subordinated Indenture") dated as of December 16, 1999 between
the Company and Chase Bank of Texas, National Association, as trustee, forms of
warrant agreements and such records of the Company's corporate proceedings and
such other documents and have made such other factual and legal investigations
as I have deemed necessary or appropriate in order to render this opinion.
Further, I am familiar with additional corporate procedures that the Company
contemplates taking prior to the issuance of any Debt Securities, Warrants,
Purchase Contracts and Units.
Based upon such examinations and investigations and subject to (i) the proposed
additional proceedings being taken as are now contemplated prior to the issuance
of the Debt Securities, Warrants, Purchase Contracts and Units; (ii) the terms
of the Debt Securities, Warrants, Purchase Contracts and Units being otherwise
in compliance with then applicable law; (iii) the due execution of the warrant
agreements for attached warrants or bearer warrants; (iv) the effectiveness of
the Registration Statement under the Act and the qualification of the
Subordinated Indenture under the Trust Indenture Act of 1939, as amended; and
(v) the due execution, authentication and delivery of the Debt Securities,
Warrants, Purchase Contracts and Units, I am of the opinion that the Debt
Securities, Warrants, Purchase Contracts and Units will, upon the issuance and
sale thereof in the manner referred to in the Registration Statement, be legally
issued and valid and binding obligations of the Company.
I consent to the use of this opinion as an exhibit to the Registration Statement
and to the reference to my name under the caption "Legal Opinions" in the
Prospectus which is part of the Registration Statement. In giving such consent I
do not thereby admit that I come within the category of persons whose consent is
required under Section 7 of the Act or of the Rules and Regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Richard J. Agnich
--------------------------------
Richard J. Agnich
Senior Vice President, Secretary
and General Counsel
EXHIBIT 5.2
DAVIS POLK & WARDWELL
450 LEXINGTON AVENUE
NEW YORK, NY 10017
212-450-4000
December 16, 1999
Texas Instruments Incorporated
12500 TI Boulevard
Dallas, Texas 75266-0199
Ladies and Gentlemen:
We have acted as your counsel in connection with the Company's
Registration Statement on Form S-3 (the "Registration Statement") filed with
the Securities and Exchange Commission pursuant to the Securities Act of 1933,
as amended, for the registration of the sale by Texas Instruments Incorporated,
a Delaware corporation (the "Company") from time to time of up to
$1,000,000,000 aggregate principal amount of (i) senior debt securities and
subordinated debt securities (collectively, the "Debt Securities"), (ii)
warrants to purchase Debt Securities or other securities or rights
("Warrants"), (iii) purchase contracts ("Purchase Contracts") requiring the
holders thereof to purchase or sell (x) the Company's securities or securities
of an entity unaffiliated or affiliated with the Company, a basket of such
securities, an index or indices of such securities or any combination of the
above, (y) currencies or composite currencies or (z) commodities, (iv) units
("Units") consisting of Debt Securities, Warrants, Purchase Contracts or any
combination of the foregoing. The Debt Securities, Warrants, Purchase Contracts
and Units are herein collectively referred to as the "Securities". The Debt
Securities may be exchangeable for Securities or other securities or rights.
The senior Debt Securities are to be issued pursuant to an Indenture (the
"Senior Indenture") dated as of July 15, 1996 between the Company and Citibank,
N.A., as Trustee. The subordinated Debt Securities are to be issued pursuant to
an Indenture (the "Subordinated Indenture") dated as of December 16, 1999
between the Company and Chase Bank of Texas, National Association, as Trustee.
The Senior Indenture and the Subordinated Indenture are hereinafter referred to
individually as an "Indenture" and collectively as the "Indentures".
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments as we have deemed
necessary for the purposes of rendering this opinion.
Texas Instruments Incorporated -2- December 16, 1999
On the basis of the foregoing, we are of the opinion that:
1. When the Indentures have been duly authorized, executed and
delivered by the Trustee and the Company, the specific terms of a
particular Debt Security have been duly authorized and established in
accordance with the applicable Indenture and such Debt Security has been
duly authorized, executed, authenticated, issued and delivered in
accordance with the applicable Indenture and the applicable underwriting
or other agreement, such Debt Security will constitute a valid and binding
obligation of the Company, enforceable in accordance with its terms
(subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting
creditors' rights generally from time to time in effect and to general
equity principles).
2. When the Warrants have been duly authorized by the Company, the
applicable Warrant Agreement has been duly executed and delivered and the
Warrants have been duly issued and delivered by the Company as
contemplated by the Registration Statement and any prospectus supplement
relating thereto, the Warrants will constitute valid and binding
obligations of the Company, enforceable in accordance with their terms
(subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting
creditors' rights generally from time to time in effect and to general
equity principles).
3. When the Units and Purchase Contracts have been duly authorized by
the Company, the applicable Unit Agreement and Purchase Contract Agreement
have been duly executed and delivered, the Units and Purchase Contracts
will constitute valid and binding obligations of the Company, enforceable
in accordance with their terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium or other
similar laws affecting creditors' rights generally from time to time in
effect and to general equity principles).
In connection with the opinions expressed above, we have assumed
that, at or prior to the time of the delivery of any such Security, (i) the
Board of Directors shall have duly established the terms of such Security and
duly authorized the issuance and sale of such Security and such authorization
shall not have been modified or rescinded; (ii) the Registration Statement
shall have been declared effective and such effectiveness
Texas Instruments Incorporated -3- December 16, 1999
shall not have been terminated or rescinded; and (iii) there shall not have
occurred any change in law affecting the validity or enforceability of such
Security. We have also assumed that none of the terms of any Security to be
established subsequent to the date hereof, nor the issuance and delivery of
such Security, nor the compliance by the Company with the terms of such
Security will violate any applicable law or will result in a violation of any
provision of any instrument or agreement then binding upon the Company, or any
restriction imposed by any court or governmental body having jurisdiction over
the Company.
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York and the federal laws of
the United States of America.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In addition, we consent to the reference to us under
the caption "Legal Matters" in the prospectus.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by or furnished to any other person without our prior written
consent.
Very truly yours,
/s/ Bruce Dallas
----------------------
Bruce Dallas
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) of Texas Instruments Incorporated and to the
incorporation by reference therein of our report dated January 19, 1999, with
respect to the consolidated financial statements and schedule of Texas
Instruments Incorporated included in its Annual Report on Form 10-K/A
(Amendment No. 1) for the year ended December 31, 1998, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
- ----------------------
Ernst & Young LLP
Dallas, Texas
December 15, 1999
Exhibit 25
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an application to determine eligibility of a Trustee
pursuant to Section 305 (b)(2) ____
------------------------
CITIBANK, N.A.
(Exact name of trustee as specified in its charter)
13-5266470
(I.R.S. employer
identification no.)
399 Park Avenue, New York, New York 10043
(Address of principal executive office) (Zip Code)
-----------------------
TEXAS INSTRUMENTS INCORPORATED
(Exact name of obligor as specified in its charter)
Delaware 75-0289970
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
8505 Forest Lane
P.O. Box 660199
Dallas, Texas 75266-0199
(Address of principal executive offices) (Zip Code)
-------------------------
Debt Securities
(Title of the indenture securities)
1) Texas Instruments Incorporated 6.875% Notes due 07/15/2000
2) Texas Instruments Incorporated 7.000% Senior Exchange Notes due 08/15/2004
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.
Name Address
---- -------
Comptroller of the Currency Washington, D.C.
Federal Reserve Bank of New York New York, NY
33 Liberty Street
New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 16. List of Exhibits.
List below all exhibits filed as a part of this Statement of
Eligibility.
Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as exhibits hereto.
Exhibit 1 - Copy of Articles of Association of the Trustee, as now in
effect. (Exhibit 1 to T-1 to Registration Statement No. 2-79983)
Exhibit 2 - Copy of certificate of authority of the Trustee to
commence business. (Exhibit 2 to T-1 to Registration Statement No.
2-29577).
2
Exhibit 3 - Copy of authorization of the Trustee to exercise
corporate trust powers. (Exhibit 3 to T-1 to Registration Statement
No. 2-55519)
Exhibit 4 - Copy of existing By-Laws of the Trustee. (Exhibit 4 to
T-1 to Registration Statement No. 33-34988)
Exhibit 5 - Not applicable.
Exhibit 6 - The consent of the Trustee required by Section 321(b) of
the Trust Indenture Act of 1939. (Exhibit 6 to T-1 to Registration
Statement No. 33-19227.)
Exhibit 7 - Copy of the latest Report of Condition of Citibank, N.A.
(as of September 30, 1999 - attached)
Exhibit 8 - Not applicable.
Exhibit 9 - Not applicable.
------------------
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Citibank, N.A., a national banking association organized and existing
under the laws of the United States of America, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York and State of New York, on the 16th day
of December, 1999.
CITIBANK, N.A.
By: /s/ Cindy Tsang
-----------------------------------
Cindy Tsang
Assistant Vice President
3
Exhibit 25.1
================================================================================
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) ____
----------------------
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
74-0800980
(I.R.S. Employer Identification Number)
712 Main Street, Houston, Texas 77002
(Address of principal executive offices) (Zip code)
Lee Boocker, 712 Main Street, 26th Floor
Houston, Texas 77002 (713) 216-2448
(Name, address and telephone number of agent for service)
TEXAS INSTRUMENTS INCORPORATED
(Exact name of obligor as specified in its charter)
Delaware 75-0289970
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
12500 TI Boulevard
P.O. Box 660199 75266-0199
(Address of principal executive offices) (Zip code)
Subordinated Securities
(Title of indenture securities)
================================================================================
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Comptroller of the Currency, Washington, D.C.
Federal Deposit Insurance Corporation, Washington, D.C.
Board of Governors of the Federal Reserve System, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations with the obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
The obligor is not an affiliate of the trustee. (See Note on Page 7.)
Item 3. Voting Securities of the trustee.
Furnish the following information as to each class of voting securities
of the trustee.
Col. A Col. B
Title of class Amount outstanding
-------------- ------------------
Not applicable by virtue of Form T-1 General Instruction B and response
to Item 13.
Item 4. Trusteeships under other indentures.
If the trustee is a trustee under another indenture under which any
other securities, or certificates of interest or participation in any
other securities, of the obligor are outstanding, furnish the following
information:
(a) Title of the securities outstanding under each such other
indenture.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
Item 4. (Continued)
(b) A brief statement of the facts relied upon as a basis for the
claim that no conflicting interest within the meaning of Section
310(b)(1) of the Act arises as a result of the trusteeship under any
such other indenture, including a statement as to how the indenture
securities will rank as compared with the securities issued under such
other indenture.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
Item 5. Interlocking directorates and similar relationships with obligor or
underwriters.
If the trustee or any of the directors or executive officer of
the trustee is a director, officer, partner, employee, appointee, or
representative of the obligor or of any underwriter for the obligor, identify
each such person having any such connection and state the nature of each such
connection.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
Item 6. Voting securities of the trustee owned by the obligor or its officials.
Furnish the following information as to the voting securities
of the trustee owned beneficially by the obligor and each director, partner and
executive officer of the obligor.
Col. A Col. B Col. C Col. D
Percentage of
voting securities
represented by
Amount owned amount given in
Name of owner Title of class beneficially Col. C
------------- -------------- ------------ ------
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
2
Item 7. Voting securities of the trustee owned by underwriters or their
officials.
Furnish the following information as to the voting securities
of the trustee owned beneficially by each underwriter for the obligor and each
director, partner and executive officer of each such underwriter.
Col. A Col. B Col. C Col. D
Percentage of
voting securities
represented by
Amount owned amount given in
Name of owner Title of class beneficially Col. C
------------- -------------- ------------ ------
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
Item 8. Securities of the obligor owned or held by the trustee.
Furnish the following information as to the securities of the
obligor owned beneficially or held as collateral security for obligations in
default by the trustee.
Col. A Col. B Col. C Col. D
Amount owned
Whether the beneficially or Percent of
securities held as collateral class
are voting security for represented by
or nonvoting obligations in amount given in
Title of class securities default Col. C
-------------- ---------- ------- ------
Not applicable by virtue of Form T-1 General Instruction B and response
to Item 13.
3
Item 9. Securities of underwriters owned or held by the trustee.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of an underwriter for the obligor, furnish
the following information as to each class of securities of such underwriter any
of which are so owned or held by the trustee.
Col. A Col. B Col. C Col. D
Amount owned
beneficially or Percent of
held as collateral class
Name of issuer security for represented by
and Amount obligations in amount given in
Title of class outstanding default Col. C
-------------- ----------- ------- ------
Not applicable by virtue of Form T-1 General Instruction B and response
to Item 13.
Item 10. Ownership or holdings by the trustee of voting securities
of certain affiliates or security holders of the obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default voting securities of a person who, to the knowledge of
the trustee (1) owns 10% or more of the voting securities of the obligor or (2)
is an affiliate, other than a subsidiary, of the obligor, furnish the following
information as to the voting securities of such person.
Col. A Col. B Col. C Col. D
Amount owned
beneficially or Percent of
held as collateral class
Name of issuer security for represented by
and Amount obligations in amount given in
Title of class outstanding default Col. C
-------------- ----------- ------- ------
Not applicable by virtue of Form T-1 General Instruction B and response
to Item 13.
4
Item 11. Ownership or holdings by the trustee of any securities of
a person owning 50% or more of the voting securities of the
obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of a person who, to the knowledge of the
trustee, owns 50% or more of the voting securities of the obligor, furnish the
following information as to each class of securities or such person any of which
are so owned or held by the trustee.
Col. A Col. B Col. C Col. D
Amount owned
beneficially or Percent of
held as collateral class
Name of issuer security for represented by
and Amount obligations in amount given in
Title of class outstanding default Col. C
-------------- ----------- ------- ------
Not applicable by virtue of Form T-1 General Instruction B and response
to Item 13.
Item 12. Indebtedness of the Obligor to the Trustee.
Except as noted in the instructions, if the obligor is indebted to the
trustee, furnish the following information:
Col. A Col. B Col. C
Nature of Amount
Indebtedness Outstanding Date Due
------------ ----------- --------
Not applicable by virtue of Form T-1 General Instruction B and response
to Item 13.
Item 13. Defaults by the Obligor.
(a) State whether there is or has been a default with respect to the
securities under this indenture. Explain the nature of any such default.
There is not, nor has there been, a default with respect to the
securities under this indenture. (See Note on Page 7.)
5
Item 13. (Continued)
(b) If the trustee is a trustee under another indenture under which any
securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, or is trustee for more than one
outstanding series of securities under the indenture, state whether there has
been a default under any such indenture or series, identify the indenture or
series affected, and explain the nature of any such default.
There has not been a default under any such indenture or series.
(See Note on Page 7.)
Item 14. Affiliations with the Underwriters.
If any underwriter is an affiliate of the trustee, describe each such
affiliation.
Not applicable by virtue of Form T-1 General Instruction B and response
to Item 13.
Item 15. Foreign Trustee.
Identify the order or rule pursuant to which the foreign trustee is
authorized to act as sole trustee under indentures qualified or to be qualified
under the Act.
Not applicable.
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of eligibility.
o 1. A copy of the articles of association of the trustee now in
effect.
# 2. A copy of the certificate of authority of the trustee to commence
business.
* 3. A copy of the certificate of authorization of the trustee to
exercise corporate trust powers issued by the Board of Governors of
the Federal Reserve System under date of January 21, 1948.
+ 4. A copy of the existing bylaws of the trustee.
5. Not applicable.
6. The consent of the United States institutional trustees
required by Section 321(b) of the Act.
6
[] 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.
NOTE REGARDING INCORPORATED EXHIBITS
Effective January 20, 1998, the name of the Trustee was changed from
Texas Commerce Bank National Association to Chase Bank of Texas, National
Association. Certain of the exhibits incorporated herein by reference, except
for Exhibit 7, were filed under the former name of the Trustee.
o Incorporated by reference to exhibit bearing the same designation and
previously filed with the Securities and Exchange Commission as exhibits to the
Form S-3 File No. 33-56195.
# Incorporated by reference to exhibit bearing the same designation and
previously filed with the Securities and Exchange Commission as exhibits to the
Form S-3 File No. 33-42814.
* Incorporated by reference to exhibit bearing the same designation and
previously filed with the Securities and Exchange Commission as exhibits to the
Form S-11 File No. 33-25132.
+ Incorporated by reference to exhibit bearing the same designation and
previously filed with the Securities and Exchange Commission as exhibits to the
Form S-3 File No. 33-65055.
[] Incorporated by reference to exhibit bearing the same designation and
previously filed with the Securities and Exchange Commission as exhibits to the
Form S-4 File No. 333-77263.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
trustee of all facts on which to base responsive answers to Items 2 and 13, the
answers to said Items are based on incomplete information. Such Items may,
however, be considered as correct unless amended by an amendment to this Form
T-1.
7
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, Chase Bank of Texas, National Association, formerly known as Texas
Commerce Bank National Association, a national banking association organized
and existing under the laws of the United States of America, has duly caused
this statement of eligibility to be signed on its behalf by the undersigned,
thereunto authorized, all in the City of Houston, and State of Texas, on the
___ day of December, 1999.
CHASE BANK of TEXAS, NATIONAL
ASSOCIATION, as Trustee
By: __________________________
John G. Jones
Vice President and Trust Officer
8
Exhibit 6
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
The undersigned is trustee under an Indenture between Classic Cable, Inc.,
a Delaware corporation, as obligor (the "Company"), and Chase Bank of Texas,
National Association, as Trustee, entered into in connection with the issuance
of the Company's Senior Subordinated Notes.
In accordance with Section 321(b) of the Trust Indenture Act of 1939, the
undersigned hereby consents that reports of examinations of the undersigned,
made by Federal or State authorities authorized to make such examinations, may
be furnished by such authorities to the Securities and Exchange Commission upon
its request therefor.
Very truly yours,
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, as Trustee
By: /s/ John G. Jones
--------------------------------
John G. Jones
Vice President and Trust Officer