|
JPMORGAN CHASE & CO - 10-K - 20050302 - EXHIBIT_4
Exhibit 4.10(a)
BANC ONE CORPORATION
AND
THE CHASE MANHATTAN BANK
TRUSTEE
INDENTURE
DATED AS OF MARCH 3, 1997
SUBORDINATED DEBT SECURITIES
Page 1
TABLE OF CONTENTS(1)
Page
----
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 1.01. Definitions........................................... 2
"this Indenture" and certain other terms.............. 2
"Act"................................................. 3
"Affiliate"........................................... 3
"Authenticating Agent"................................ 3
"Authorized Newspaper"................................ 3
"Authorized Officer".................................. 3
"Bearer Security"..................................... 3
"Board of Directors".................................. 3
"Board Resolution".................................... 3
"Business Day"........................................ 4
"CEDEL; CEDEL S.A."................................... 4
"Commission".......................................... 4
"Common Depositary"................................... 4
"Company"............................................. 4
"Company Request" and "Company Order"................. 4
"corporation"......................................... 4
"coupon".............................................. 4
"Default"............................................. 4
"Defaulted Interest".................................. 4
"Depositary".......................................... 5
"Designated Currency"................................. 5
"Dollar".............................................. 5
"ECU"................................................. 5
"Euroclear"........................................... 5
"European Communities"................................ 5
"Event of Default".................................... 5
"Exchange Act"........................................ 5
"Exchange Rate"....................................... 5
"Exchange Rate Officer's Certificate"................. 5
"Existing Subordinated Indebtedness".................. 6
"Foreign Currency".................................... 6
"General Obligations"................................. 6
"Global Exchange Rate"................................ 7
|
(1) This Table of Contents is not part of the Indenture.
Page 2
CONTENTS, p. 2
Page
----
"Global Security" ............................ 7
"Holder" ..................................... 7
"interest" ................................... 7
"Interest Payment Date" ...................... 7
"Maturity" ................................... 7
"Officers' Certificate" ...................... 7
"Opinion of Counsel" ......................... 7
"Original Issue Discount Security" ........... 8
"Outstanding" ................................ 8
"Paying Agent" ............................... 9
"Person" ..................................... 9
"Place of Payment" ........................... 9
"Predecessor Security" ....................... 9
"Principal Corporate Trust Office" ........... 9
"Principal Paying Agent" ..................... 9
"Redemption Date" ............................ 10
"Redemption Price" ........................... 10
"Registered Security" ........................ 10
"Regular Record Date" ........................ 10
"Remarketing Entity" ......................... 10
"Repayment Date" ............................. 10
"Repayment Price" ............................ 10
"Responsible Officer" ........................ 10
"Security"; "Securities" ..................... 10
"Security Register" .......................... 11
"Security Registrar" ......................... 11
"Senior Indebtedness" ........................ 11
"Special Record Date" ........................ 11
"Stated Maturity" ............................ 11
"Subsidiary of the Company" or "Subsidiary"... 11
"Trustee" .................................... 12
"Trust Indenture Act" or "TIA" ............... 12
"United States" .............................. 12
"United States Alien" ........................ 12
"vice president" ............................. 12
SECTION 1.02. Compliance Certificates and Opinions ......... 12
SECTION 1.03. Form of Documents Delivered to Trustee ....... 13
SECTION 1.04. Acts of Holders .............................. 14
SECTION 1.05. Notices, etc., to Trustee and Company ........ 17
SECTION 1.06. Notices to Holders; Waiver ................... 18
SECTION 1.07. Language of Notices, Etc ..................... 19
SECTION 1.08. Conflict with Trust Indenture Act ............ 19
|
Page 3
CONTENTS, p. 3
Page
----
SECTION 1.09. Effect of Headings and Table of Contents ............ 20
SECTION 1.10. Successors and Assigns .............................. 20
SECTION 1.11. Separability Clause ................................. 20
SECTION 1.12. Benefits of Indenture ............................... 20
SECTION 1.13. Legal Holidays ...................................... 20
SECTION 1.14. Governing Law ....................................... 21
ARTICLE TWO
Security Forms
SECTION 2.01. Form Generally ...................................... 21
SECTION 2.02. Form of Securities .................................. 21
SECTION 2.03. Form of Trustee's Certificate of Authentication ..... 22
SECTION 2.04. Global Securities ................................... 22
ARTICLE THREE
The Securities
SECTION 3.01. Title and Terms ..................................... 23
SECTION 3.02. Denominations ....................................... 27
SECTION 3.03. Execution, Authentication, Delivery and Dating ...... 27
SECTION 3.04. Temporary Securities ................................ 31
SECTION 3.05. Registration, Registration of Transfer and Exchange . 35
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities .... 40
SECTION 3.07. Payment of Interest; Interest Rights Preserved ...... 41
SECTION 3.08. Persons Deemed Owners ............................... 44
SECTION 3.09. Cancellation ........................................ 44
SECTION 3.10. Computation of Interest ............................. 45
SECTION 3.11. Forms of Certification .............................. 45
SECTION 3.12. Judgments ........................................... 46
SECTION 3.13. CUSIP Numbers ....................................... 46
|
Page 4
CONTENTS, p. 4
Page
----
ARTICLE FOUR
Redemption of Securities
SECTION 4.01. Applicability of Article .................................. 47
SECTION 4.02. Election to Redeem; Notice to Trustee ..................... 47
SECTION 4.03. Selection by Security Registrar of
Securities to be Redeemed .............................. 47
SECTION 4.04. Notice of Redemption ...................................... 48
SECTION 4.05. Deposit of Redemption Price ............................... 49
SECTION 4.06. Securities Payable on Redemption Date ..................... 49
SECTION 4.07. Securities Redeemed in Part ............................... 50
SECTION 4.08. Redemption Suspended During Event of Default .............. 51
ARTICLE FIVE
Covenants
SECTION 5.01. Payment of Principal, Premium and Interest ................ 51
SECTION 5.02. Maintenance of Office or Agency ........................... 52
SECTION 5.03. Money for Security Payments to Be Held in Trust ........... 54
SECTION 5.04. Additional Amounts ........................................ 56
SECTION 5.05. Statement as to Compliance ................................ 57
SECTION 5.06. Maintenance of Corporate Existence, Rights and Franchises.. 57
ARTICLE SIX
Holder's Lists and Reports
by Trustee and Company
SECTION 6.01. Company to Furnish Trustee Names and Addresses of Holders.. 58
SECTION 6.02. Preservation of Information; Communications to Holders .... 58
SECTION 6.03. Reports by Trustee ........................................ 60
SECTION 6.04. Reports by Company ........................................ 61
|
Page 5
CONTENTS, p. 5
Page
----
ARTICLE SEVEN
Remedies
SECTION 7.01. Events of Default .................................. 62
SECTION 7.02. Acceleration of Maturity; Rescission and Annulment.. 63
SECTION 7.03. Collection of Indebtedness and Suits
for Enforcement by Trustee .................... 64
SECTION 7.04. Trustee May File Proofs of Claim ................... 65
SECTION 7.05. Trustee May Enforce Claims Without
Possession of Securities ...................... 66
SECTION 7.06. Application of Money Collected ..................... 66
SECTION 7.07. Limitation on Suits ................................ 67
SECTION 7.08. Unconditional Right of Holders to Receive Principal,
Premium and Interest .......................... 69
SECTION 7.09. Restoration of Rights and Remedies ................. 69
SECTION 7.10. Rights and Remedies Cumulative ..................... 69
SECTION 7.11. Delay or Omission Not Waiver ....................... 70
SECTION 7.12. Control by Noteholders ............................. 70
SECTION 7.13. Waiver of Past Defaults ............................ 70
SECTION 7.14. Undertaking for Costs .............................. 71
SECTION 7.15. Waiver of Stay or Extension Laws ................... 71
ARTICLE EIGHT
The Trustee
SECTION 8.01. Certain Duties and Responsibilities ................ 72
SECTION 8.02. Notice of Default .................................. 73
SECTION 8.03. Certain Rights of Trustee .......................... 74
SECTION 8.04. Not Responsible for Recitals or Issuance of Notes .. 76
SECTION 8.05. May Hold Securities ................................ 76
SECTION 8.06. Money Held in Trust ................................ 76
SECTION 8.07. Compensation and Reimbursement ..................... 76
SECTION 8.08. Disqualification; Conflicting Interests ............ 77
SECTION 8.09. Corporate Trustee Required; Eligibility ............ 77
SECTION 8.10. Resignation and Removal; Appointment of Successor .. 78
SECTION 8.11. Acceptance of Appointment by Successor ............. 80
|
Page 6
CONTENTS, p. 6
Page
----
SECTION 8.12. Merger, Conversion, Consolidation or Succession
to Business of Trustee .......................... 82
SECTION 8.13. Preferential Collection of Claims against Company..... 82
SECTION 8.14. Appointment of Authenticating Agents ................. 82
ARTICLE NINE
Supplemental Indentures
SECTION 9.01. Supplemental Indentures Without Consent of Holders ... 85
SECTION 9.02. Supplemental Indentures With Consent of Holders ...... 87
SECTION 9.03. Execution of Supplemental Indentures ................. 88
SECTION 9.04. Effect of Supplemental Indentures .................... 88
SECTION 9.05. Conformity with Trust Indenture Act .................. 88
SECTION 9.06. Reference in Securities to Supplemental Indentures ... 89
SECTION 9.07. Subordination Unimpaired ............................. 89
ARTICLE TEN
Consolidation, Merger, Conveyance or Transfer
SECTION 10.01. Company May Consolidate, etc., Only on Certain Terms.. 89
SECTION 10.02. Successor Corporation Substituted .................... 90
ARTICLE ELEVEN
Satisfaction and Discharge
SECTION 11.01. Satisfaction and Discharge of Indenture .............. 90
SECTION 11.02. Application of Trust Money ........................... 92
SECTION 11.03. Reinstatement ........................................ 92
|
Page 7
CONTENTS, p. 7
Page
----
ARTICLE TWELVE
Immunity of Incorporations, Stockholders,
Officers and Directors
SECTION 12.01. Exemption from Individual Liability ...................... 93
ARTICLE THIRTEEN
Sinking Funds
SECTION 13.01. Applicability of Article ................................. 93
SECTION 13.02. Satisfaction of Sinking Fund Payments with Securities .... 94
SECTION 13.03. Redemption of Securities for Sinking Fund ................ 94
ARTICLE FOURTEEN
Subordination of Securities
SECTION 14.01. Agreement to Subordinate ................................. 95
SECTION 14.02. Distribution on Dissolution,
Liquidation and Reorganization; Subrogation of
Securities .......................................... 95
SECTION 14.03. Payments on Securities Prohibited
During Event of Default under Senior Indebtedness ... 99
SECTION 14.04. Payments on Securities Permitted ......................... 100
SECTION 14.05. Authorization of Holders to Trustee to
Effect Subordination ................................ 100
SECTION 14.06. Notice To Trustee ........................................ 101
SECTION 14.07. Right of Trustee to Hold Senior
Indebtedness or General Obligations ................. 101
SECTION 14.08. Article Fourteen Not to Prevent
Defaults or Events of Default ....................... 101
SECTION 14.09. Securities to Rank Pari Passu with Existing Subordinated
Indebtedness; Payment of Proceeds in Certain Cases .. 101
|
Page 8
CONTENTS, p. 8
Page
----
ARTICLE FIFTEEN
Repayment at the Option of Holders
SECTION 15.01. Applicability of Article ......................... 104
SECTION 15.02. Repayment of Securities .......................... 104
SECTION 15.03. Exercise of Option; Notice ....................... 104
SECTION 15.04. Election of Repayment by Remarketing Entities .... 106
SECTION 15.05. Securities Payable on the Repayment Date ......... 106
ARTICLE SIXTEEN
Meetings of Holders of Securities
SECTION 16.01. Purposes for Which Meetings May Be Called ........ 107
SECTION 16.02. Call, Notice and Place of Meetings ............... 107
SECTION 16.03. Persons Entitled to Vote at Meetings ............. 108
SECTION 16.04. Quorum; Action ................................... 108
SECTION 16.05. Determination of Voting Rights;
Conduct and Adjournment of Meetings ......... 109
SECTION 16.06. Counting Votes and Recording Action of Meetings .. 110
ARTICLE SEVENTEEN
Miscellaneous
SECTION 17.01. Counterparts ..................................... 111
TESTIMONIUM ...................................................... 112
SIGNATURES AND SEALS ............................................. 112
ACKNOWLEDGMENTS .................................................. 113
EXHIBIT A. Form of Certificate to be Given by
Person Entitled to Receive Bearer
Security
EXHIBIT B. Form of Certificate to be Given by
Euro-clear and CEDEL S.A. in
Connection with the Exchange of a
Portion of a Temporary Global Security
|
Page 9
Contents, p. 9
Page
----
EXHIBIT C. Form of Certificate to be Given by
Euro-clear and CEDEL S.A. to Obtain
Interest Prior to an Exchange Date
EXHIBIT D. Form of Certificate to be Given by
Beneficial Owners to Obtain Interest
Prior to an Exchange Date
|
Page 10
CONTENTS, p. 10
TABLE SHOWING REFLECTION IN INDENTURE OF CERTAIN PROVISIONS
OF TRUST INDENTURE ACT OF 1939
Reflected in Indenture
Section
-------
TIA
Section 310(a)(1)......................................................... 8.09
(a)(2)......................................................... 8.09
(a)(3)......................................................... Not Applicable
(a)(4)......................................................... Not Applicable
(a)(5)......................................................... 8.09
(b)............................................................ 8.08
8.10
(c)............................................................ Not Applicable
Section 311(a)............................................................ 8.13
(b)............................................................ 8.13
Section 312(a)............................................................ 6.01
6.02(i)
(b)............................................................ 6.02(ii)
(c)............................................................ 6.02(iii)
Section 313(a)............................................................ 6.03(i)
(b)............................................................ 6.03(ii)
(c)............................................................ 6.03(i), (ii) and (iii)
(d)............................................................ 6.03(iii)
Section 314(a)............................................................ 6.04
5.05
(b)............................................................ Not Applicable
(c)(1)......................................................... 1.02
(c)(2)......................................................... 1.02
(c)(3)......................................................... Not Applicable
(d)............................................................ Not Applicable
(e)............................................................ 1.02
(f)............................................................ Not Applicable
Section 315(a)............................................................ 8.01(i)
8.01(iii)
(b)............................................................ 8.02
(c)............................................................ 8.01(ii)
(d)............................................................ 8.01
(d)(1)......................................................... 8.01(i)
(d)(2)......................................................... 8.01(iii)(b)
(d)(3)......................................................... 8.01(iii)(c)
(e)............................................................ 7.14
Section 316(a)............................................................ 1.01
|
Page 11
CONTENTS, p. 11
Reflected in Indenture
Section
-------
Section 316(a)(1)(A)................................................... 7.02
7.12
(a)(1)(B)................................................... 7.13
(a)(2)...................................................... Not Applicable
(b)......................................................... 7.08
(c)......................................................... 1.04(viii)
Section 317(a)(1)...................................................... 7.03
(a)(2)...................................................... 7.04
(b)......................................................... 5.03
Section 318(a)......................................................... 1.08
(c)......................................................... 1.08
|
Page 12
THIS INDENTURE is entered into as of March 3, 1997, between BANC ONE
CORPORATION, a corporation organized and existing under the laws of the State of
Ohio (hereinafter called the "Company"), having its principal executive office
at 100 East Broad Street, Columbus, Ohio 43271, and THE CHASE MANHATTAN BANK, a
New York banking corporation (hereinafter called the "Trustee"), having its
principal corporate trust office at 450 W. 33rd Street, 15th Floor, New York,
New York 10001.
RECITALS OF THE COMPANY
The Company deems it necessary from time to time to issue its unsecured
subordinated debentures, notes, bonds and other evidences of indebtedness to be
issued in one or more series (hereinafter called the "Securities") as
hereinafter set forth, and to provide therefor the Company has duly authorized
the execution and delivery of this Indenture.
All things necessary to make this Indenture a valid agreement of the Company, in
accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by
the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of any series thereof,
as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(i) the term "this Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 3.01;
(ii) all references in this instrument to designated "Articles", "Sections" and
other subdivisions are to the designated Articles, Sections and other
subdivisions of this Indenture. 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;
(iii) the terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular;
(iv) all other terms used herein which are defined in the Trust Indenture Act,
either directly or by reference therein, have the meanings assigned to them
therein; and
(V) all accounting terms not otherwise defined herein have the meanings assigned
to them in accordance with generally accepted accounting principles, and, except
as may be otherwise expressly provided herein or in one or more indentures
supplemental hereto, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted at the date of such computation.
"Act", when used with respect to any Holder, has the meaning specified in
Section 1.04.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized to act on behalf of the
Trustee to authenticate Securities pursuant to Section 8.14.
"Authorized Newspaper" means a newspaper, in an official language of the country
of publication or in the English language, customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and of
general circulation in the place in connection with which the term is used or in
the financial community of such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Authorized Officer" means the Chairman of the Board, the President, any Vice
Chairman of the Board, any Vice President, the Treasurer, the Secretary, the
Comptroller, any Assistant Comptroller, any Assistant Treasurer or any Assistant
Secretary of the Company.
Page 13
"Bearer Security" means any Security in the form established pursuant to Section
2.02 which is payable to bearer, including, without limitation, unless the
context otherwise indicates, a Security in global bearer form.
"Board of Directors" means either the board of directors of the Company or any
duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day" means any day, other than a Saturday or Sunday, on which banking
institutions in the City of Columbus, Ohio and any Place of Payment for the
Securities are open for business.
"CEDEL" or "CEDEL S.A." means Cedel Bank, societe anonymne or its successors.
"Commission" means the Securities and Exchange Commission, as from time to time
constituted, created under the Exchange Act, or if any time after the execution
and delivery of this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Depositary" has the meaning specified in Section 3.04(b)(ii).
"Company" means the Person named as the "Company" in the first paragraph of this
instrument until any successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
any such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written request or
order signed in the name of the Company by its Chairman of the Board, its
President, a Vice Chairman of the Board, or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Comptroller, an Assistant Comptroller,
its Secretary or an Assistant Secretary, and delivered to the Trustee.
"corporation" includes corporations, associations, companies and business
trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Default" has the meaning specified in Section 7.07.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Depositary" means, with respect to the Securities of any series issuable or
issued in the form of a Global Security, the Person designated as Depositary by
the Company pursuant to Section 3.01 until a successor Depositary shall have
been appointed pursuant to Section 3.05, 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
Securities of that series.
"Designated Currency" has the meaning specified in Section 3.12.
"Dollar" or "$" 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.
"ECU" means the European Currency Unit as defined and revised from time to time
by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels Office, as
operator of the Euroclear System.
"European Communities" means the European Economic Community, the European Coal
and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 7.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from time
to time, and any statute successor thereto.
"Exchange Rate" shall have the meaning specified as contemplated in Section
3.01.
"Exchange Rate Agent" shall have the meaning specified as contemplated in
Section 3.01.
Page 14
"Exchange Rate Officer's Certificate" with respect to any date for the payment
of principal of (and premium, if any) and interest on any series of Securities,
means a certificate setting forth the applicable Exchange Rate and the amounts
payable in Dollars and Foreign Currencies in respect of the principal of (and
premium, if any) and interest on Securities denominated in ECU, any other
composite currency or Foreign Currency, and signed by the Chairman of the Board,
a Vice Chairman of the Board, the President, any Vice President, the Treasurer
or any Assistant Treasurer of the Company or the Exchange Rate Agent appointed
pursuant to Section 3.01 and delivered to the Trustee.
"Existing Subordinated Indebtedness" means, unless otherwise determined with
respect to any series of Securities pursuant to Section 3.01, the Company's
7.25% Subordinated Notes Due August 1, 2002, the Company's 8.74% Subordinated
Notes Due September 15, 2003, the Company's 7.00% Subordinated Notes Due July
15, 2005, the Company's 9.875% Subordinated Notes Due March 1, 2009, the
Company's 10.00% Subordinated Notes Due August 15, 2010, the Company's 7.75%
Subordinated Debentures Due July 15, 2025 and the Company's 7.625% Subordinated
Debentures Due October 15, 2026.
"Foreign Currency" means a currency issued by the government of any country
other than the United States of America.
"General Obligations" means, unless otherwise determined with respect to any
series of Securities pursuant to Section 3.01, all obligations of the Company to
make payment on account of claims in respect of derivative products such as
interest and foreign exchange rate contracts, commodity contracts and similar
arrangements, other than (i) obligations on account of Senior Indebtedness, (ii)
obligations on account of indebtedness for money borrowed ranking pari passu
with or subordinate to the Securities and (iii) obligations which by their terms
are expressly stated not to be superior in right of payment to the Securities or
to rank on a parity with the Securities; provided, however, that notwithstanding
the foregoing, in the event that any rule, guideline or interpretation
promulgated or issued by the Board of Governors of the Federal Reserve System
(or other competent regulatory agency or authority), as from time to time in
effect, establishes or specifies criteria for the inclusion in regulatory
capital of subordinated debt of a bank holding company requiring that such
subordinated debt be subordinated to obligations to creditors in addition to
those set forth above, then the term "General Obligations" shall also include
such additional obligations to creditors, as from time to time in effect
pursuant to such rules, guidelines or interpretations. For purposes of this
definition, "claim" shall have the meaning assigned thereto in Section 101(4) of
the Bankruptcy Code of 1978, as amended to the date of this instrument.
"Global Exchange Date" has the meaning specified in Section 3.04(b)(iv).
"Global Security" means a Security issued to evidence all or a part of a series
of Securities in accordance with Section 3.03.
"Holder", with respect to a Registered Security, means a Person in whose name
such Registered Security is registered in the Security Register and, with
respect to a Bearer Security (or any temporary Global Security) or a coupon,
means the bearer thereof.
"interest", when used with respect to an Original Issue Discount Security which
by its terms bears interest only after Maturity, means interest payable after
Maturity.
"Interest Payment Date", when used with respect to any series of Securities,
means the Stated Maturity of an installment of interest on such Securities.
"Maturity", when used with respect to any Security, means the date on which the
principal of such Security (or any installment of principal) becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the Board,
the President, a Vice Chairman of the Board, or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Comptroller, an Assistant Comptroller,
the Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee. Each such certificate shall contain the statements set forth in Section
1.02, if applicable.
"Opinion of Counsel" means a written opinion of counsel, who may (except as
otherwise expressly provided in this Indenture) be an employee of the Company,
and who shall be reasonably acceptable to the Trustee. Each such opinion shall
contain the statements set forth in Section 1.02, if applicable.
"Original Issue Discount Security" means any Security which 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 7.02.
"Outstanding" when used with respect to Securities or Securities of any series,
means, as of the date of determination, all such Securities theretofore
authenticated and delivered under this Indenture, except:
(i) such Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
Page 15
(ii) such Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the Holders of
such Securities; provided that, if such Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(iii) such Securities in lieu of which other Securities have been authenticated
and delivered pursuant to Section 3.06 of this Indenture;
provided, however, that in determining whether the Holders of the requisite
principal amount of such Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities, the principal amount of
Original Issue Discount Securities 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 7.02, and Securities owned by the
Company or any other obligor upon the Securities or any Affiliate of the Company
or such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which a Responsible Officer of the Trustee actually
knows to be so owned shall be disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the principal
of, premium, if any, or interest on any Securities or any coupons appertaining
thereto on behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any series,
means the place or places where, subject to the provisions of Section 5.02, the
principal of (and premium, if any) and interest on the Securities of that series
are payable as specified in accordance with Section 3.01.
"Predecessor Security" of any particular Security means every previous Security
evidencing all or a portion of the same debt as that evidenced by such
particular Security; and for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Security.
"Principal Corporate Trust Office" means the office of the Trustee, at which at
any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this instrument is at the
address set forth in the first paragraph of this instrument
"Principal Paying Agent" means the Paying Agent, if any, designated as such by
the Company pursuant to Section 3.01 of this Indenture.
"Redemption Date", when used with respect to any Security to be redeemed, means
the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed, means
the price specified in such Security at which it is to be redeemed pursuant to
this Indenture.
"Registered Security" means any Security in the form established pursuant to
Section 2.02 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Security on any Interest
Payment Date means the date, if any, specified in such Security as the "Regular
Record Date".
"Remarketing Entity", when used with respect to the Securities of any series
which are repayable at the option of the Holders thereof before their Stated
Maturity, means any Person designated by the Company to purchase any such
Securities.
"Repayment Date", when used with respect to any Security to be repaid upon
exercise of option for repayment by the Holder, means the date fixed for such
repayment pursuant to this Indenture.
"Repayment Price", when used with respect to any Security to be repaid upon
exercise of option for repayment by the Holder, means the price at which it is
to be repaid pursuant to this Indenture.
Page 16
"Responsible Officer", when used with respect to the Trustee, means any officer
of the Trustee with direct responsibility for the administration of this
Indenture and also means, with respect to a particular corporate trust matter,
any other officer of the Trustee to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Security" or "Securities" means any Security or Securities, as the case may be,
authenticated and delivered under this Indenture; provided, however, that, if at
any time there is more than one Person acting as Trustee under this Indenture,
"Securities", with respect to any such Person, shall mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
"Security Register" has the meaning specified in Section 3.05.
"Security Registrar" has the meaning specified in Section 3.05.
"Senior Indebtedness" means the principal of, premium, if any, and interest on
(i) all of the Company's indebtedness for money borrowed, other than the
Securities and the Existing Subordinated Indebtedness, whether outstanding on
the date of execution of this Indenture or thereafter created, assumed or
incurred, except such indebtedness as is by its terms expressly stated to be not
superior in right of payment to the Securities or the Existing Subordinated
Indebtedness or to rank pari passu with the Securities or the Existing
Subordinated Indebtedness and (ii) any deferrals, renewals or extensions of any
such Senior Indebtedness. The term "indebtedness for money borrowed" as used in
the foregoing sentence shall include, without limitation, any obligation of, or
any obligation guaranteed by, the Company for the repayment of borrowed money,
whether or not evidenced by bonds, debentures, notes or other written
instruments, and any deferred obligation for the payment of the purchase price
of property or assets.
"Special Record Date" for the payment of any Defaulted Interest means the date
fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity", when used with respect to any Security, or any installment of
principal thereof or interest thereon, means the date specified in such Security
as the fixed date on which the principal of such Security, or such installment
of principal or interest, is due and payable.
"Subsidiary of the Company" or "Subsidiary" means a corporation at least a
majority of the outstanding voting stock of which is owned, directly or
indirectly, by the Company or by one or more Subsidiaries of the Company, or by
the Company and one or more Subsidiaries of the Company.
As used under this heading, the term "voting stock" means stock having ordinary
voting power for the election of directors irrespective of whether or not stock
of any other class or classes shall have or might have voting power by reason of
the happening of any contingency.
"Trustee" means the Person named as the "Trustee" in the first paragraph of this
instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" or "TIA" (except as herein otherwise expressly provided)
means the Trust Indenture Act of 1939, as in force at the date as of which this
instrument was executed, and, to the extent required by law, as amended.
"United States" means the United States of America (including the States and the
District of Columbia), its territories, its possessions and other areas subject
to its jurisdiction.
"United States Alien", except as otherwise provided in or pursuant to this
Indenture, means any Person who, for United States Federal income tax purposes,
is a foreign corporation, a nonresident alien individual, a non-resident alien
fiduciary of a foreign estate or trust, or a foreign partnership one or more of
the members of which is, for United States Federal income tax purposes, a
foreign corporation, a non-resident alien individual or a non-resident alien
fiduciary of a foreign estate or trust.
"vice president", when used with respect to the Company or the Trustee, means
any vice president, whether or not designated by a number or a word or words
added before or after the title "vice president".
SECTION 1.02. Compliance Certificates and Opinions. Upon any application or
request by the Company to the Trustee to take any action under any provision of
this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Page 17
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (except as otherwise expressly provided
in this Indenture) shall include:
(i) a statement that each individual signing such certificate or opinion has
read such covenant or condition and the definitions herein relating thereto;
(ii) 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;
(iii) a statement that, in the opinion of each such individual, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(iv) a statement as to whether, in the opinion of each such individual, such
condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee. In any case where several
matters are required to be certified by, or covered by an opinion of, any
specified Person, it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or give an opinion
with respect to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such matters
in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as
it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more applications,
requests, consents, certificates, statements, opinions or other instruments
under this Indenture, they may, but need not, be consolidated and form one
instrument.
SECTION 1.04. Acts of Holders. (i) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders or Holders of any series may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by an agent duly appointed in writing. If Securities
of a series are issuable in whole or in part as Bearer Securities, any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders may, alternatively,
be embodied in and evidenced by the record of Holders of Securities voting in
favor thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities duly called and held in accordance with the
provisions of Article Sixteen or a combination of such instruments and any such
record. Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered to
the Trustee, and, where it is hereby expressly required, to the Company. Such
instrument or instruments and any such record (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments and so voting at any such
meeting. Proof of execution of any such instrument or of a writing appointing
any such agent, or the holding by any Person of a Security, shall be sufficient
for any purpose of this Indenture and (subject to Section 8.01) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section. The record of any meeting of Holders of Securities shall be proved in
the manner provided in Section 16.06.
(ii) The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by the
certificate of any notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
or on behalf of any legal entity other than an individual, such certificate or
affidavit shall also constitute proof of the authority of the Person executing
the same. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(iii) The ownership of Registered Securities shall be proved by the Security
Register.
(iv) The principal amount and serial numbers of Bearer Securities held by any
Person, and the date of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank or other depositary, wherever situated, if such certificate shall
be deemed by the Trustee to be satisfactory, showing that at the date therein
mentioned such Person had on deposit with such depositary, or exhibited to it,
the Bearer Securities therein described; or such facts may be proved by the
certificate or affidavit of the Person holding such Bearer Securities, if such
certificate or affidavit is deemed by the Trustee to be satisfactory. The
Trustee and the Company may assume that such ownership of any Bearer Security
continues until (1) another certificate or affidavit bearing a later date issued
in respect of the same Bearer Security is produced, or (2) such Bearer
Page 18
Security is produced to the Trustee by some other Person, or (3) such Bearer
Security is surrendered in exchange for a Registered Security, or (4) such
Bearer Security is no longer Outstanding.
(v) The fact and date of execution of any such instrument or writing, the
authority of the Person executing the same and the principal amount and serial
numbers of Bearer Securities held by the Person so executing such instrument or
writing and the date of holding the same may also be proved in any other manner
which the Trustee deems sufficient; and the Trustee may in any instance require
further proof with respect to any of the matters referred to in this Section.
(vi) Any request, demand, authorization, direction, notice, consent, waiver or
other action by the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof, in respect of any
action taken, suffered or omitted by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Security.
(vii) For purposes of determining the principal amount of Outstanding Securities
of any series the Holders of which are required, requested or permitted to give
any request, demand, authorization, direction, notice, consent, waiver or take
any other Act under the Indenture, each Security denominated in a Foreign
Currency or composite currency shall be deemed to have the principal amount
determined by the Exchange Rate Agent by converting the principal amount of such
Security in the currency in which such Security is denominated into Dollars at
the Exchange Rate as of the date such Act is delivered to the Trustee and, where
it is hereby expressly required, to the Company, by Holders of the required
aggregate principal amount of the Outstanding Securities of such series (or, if
there is no such rate on such date, such rate on the date determined as
specified as contemplated in Section 3.01).
(viii) The Company may, in the circumstances permitted by the Trust Indenture
Act, set a record date for purposes of determining the identity of Holders of
Securities of any series entitled to give any request, demand, authorization,
direction, notice, consent, waiver or take any other Act, or to vote or consent
to any action by vote or consent authorized or permitted to be given or taken by
Holders of Securities of such series. If not set by the Company prior to the
first solicitation of a Holder of Securities of such Series made by any Person
in respect of any such action, or in the case of any such vote, prior to such
vote, such record date shall be the later of 30 days prior to the first
solicitation of such consent or the date of the most recent list of Holders of
such Securities furnished to the Trustee pursuant to Section 6.01 prior to such
solicitation. (ix) Without limiting the foregoing, a Holder entitled hereunder
to take any action hereunder with regard to any particular Security may do so
with regard to all or any part of the principal amount of such Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal amount. Any notice
given or action taken by a Holder or its agents with regard to different parts
of such principal amount pursuant to this paragraph shall have the same effect
as if given or taken by separate Holders of each such different part.
(x) Without limiting the generality of the foregoing, unless otherwise specified
pursuant to Section 3.01 or pursuant to one or more indentures supplemental
hereto, a Holder, including a Depositary that is the Holder of a Global
Security, may make, give or take, by a proxy or proxies duly appointed in
writing, any request, demand, authorization, direction, notice, consent, waiver
or other action provided in this Indenture to be made, given or taken by
Holders, and a Depositary that is the Holder of a Global Security may provide
its proxy or proxies to the beneficial owners of interests in any such Global
Security through such Depositary's standing instructions and customary
practices.
(xi) The Company may fix a record date for the purpose of determining the
Persons who are beneficial owners of interests in any Global Security held by a
Depositary entitled under the procedures of such Depositary to make, give or
take, by a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by Holders. If such a record date is
fixed, the Holders on such record date or their duly appointed proxy or proxies,
and only such Persons, shall be entitled to make, give or take such request,
demand, authorization, direction, notice, consent, waiver or other action,
whether or not such Holders remain Holders after such record date. No such
request, demand, authorization, direction, notice, consent, waiver or other
action shall be valid or effective if made, given or taken more than 90 days
after such record date.
SECTION 1.05. Notices, etc., to Trustee and Company. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(i) the Trustee by any Holder or by the Company shall be sufficient for every
purpose hereunder if made, given, furnished or filed in writing to or with the
Trustee at its Principal Corporate Trust Office, Attention: Corporate Trustee
Administration Department, or
(ii) the Company by any Holder or by the Trustee shall be sufficient for every
purpose hereunder (unless otherwise herein expressly provided) if in writing and
mailed, first-class, postage prepaid, to the Company, to the attention of its
Treasurer, addressed to it at the address of its principal office specified in
the first paragraph of this Indenture or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 1.06. Notices to Holders; Waiver. Where this Indenture or any Security
provides for notice to Holders of any event,
Page 19
(1) such notice shall be sufficiently given (unless otherwise herein or in such
Security expressly provided) if in writing and mailed, first-class, postage
prepaid, to each Holder of Registered Securities affected by such event, at his
address as it appears in the Security Register, not later than the latest date,
and not earlier than the earliest date, prescribed for the giving of such
notice.
(2) such notice shall be sufficiently given to Holders of Bearer Securities if
published in an Authorized Newspaper in The City of New York and, if the
Securities of such series are then listed on The International Stock Exchange of
the United Kingdom and the Republic of Ireland Limited and such stock exchange
shall so require, in London and, if the Securities of such series are then
listed on the Luxembourg Stock Exchange and such stock exchange shall so
require, in Luxembourg and, if the Securities of such series are then listed on
any other stock exchange and such stock exchange shall so require, in any other
required city outside the United States, 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. In case by reason of the suspension of regular
mail service or by reason of any other cause it shall be impracticable to give
such notice to Holders of Registered Securities by mail, then such notification
as shall be made with the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder. In any case where notice to Holders of
Registered Securities is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed, to any particular Holder of Registered
Securities 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 Bearer Securities given as provided above.
In case by reason of the suspension of publication of any Authorized Newspaper
or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.
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 1.07. Language of Notices, Etc. Any request, demand, authorization,
direction, notice, consent, or waiver required or permitted under this Indenture
shall be in the English language, except that any published notice may be in an
official language of the country of publication.
SECTION 1.08. Conflict with Trust Indenture Act. If and to the extent that any
provision of this Indenture limits, qualifies or conflicts with the duties
imposed by, or with another provision (an "incorporated provision") included in
this Indenture by operation of, Sections 310 and 318, inclusive, of the TIA,
such imposed duties or incorporated provision shall control.
SECTION 1.09. Effect of Headings and Table of Contents. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
SECTION 1.10. Successors and Assigns. All covenants and agreements in this
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 1.11. Separability Clause. In case any provision in this Indenture or in
the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 1.12. Benefits of Indenture. Nothing in this Indenture or in the
Securities, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, the Holders and, to the extent provided
in Article Fourteen hereof, the holders of Senior Indebtedness and creditors in
respect of General Obligations, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 1.13. Legal Holidays. Unless otherwise provided as contemplated by
Section 3.01 with respect to any series of Securities, in any case where any
Interest Payment Date, Stated Maturity, Repayment Date or Redemption Date of any
Security or any date on which any Defaulted Interest is proposed to be paid
shall not be a Business Day at any Place of Payment, then (notwithstanding any
other provisions of the Securities or this Indenture) payment of the principal
of, premium, if any, or interest on any Securities need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day with the same force and effect as if made on the Interest Payment Date,
Stated Maturity, Repayment or Redemption Date or on the date on which Defaulted
Interest is proposed to be paid and, if such payment is made, no interest shall
accrue on such payment for the period from and after any such Interest Payment
Date, Stated Maturity, Repayment Date or Redemption Date or date on which
Defaulted Interest is proposed to be paid, as the case may be.
Page 20
SECTION 1.14. Governing Law. This Indenture and the Securities shall be
construed in accordance with and governed by the laws of the State of New York.
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Form Generally. All Securities and any related coupons shall have
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon
as may be required to comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the officers executing such
Securities or coupons, as evidenced by their execution of the Securities or
coupons.
The Trustee's certificates of authentication shall be in substantially the form
set forth in this Article.
Unless otherwise provided as contemplated by Section 3.01 with respect to any
series of Securities, the Securities of each series shall be issuable in
registered form without coupons. If so provided as contemplated by Section 3.01,
the Securities of a series shall be issuable solely in bearer form, or in both
registered form and bearer form. Unless otherwise specified as contemplated by
Section 3.01, Securities in bearer form shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed or engraved
or produced by any combination of these methods on a steel engraved border or
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities or coupons, as evidenced by their
execution of such Securities or coupons.
SECTION 2.02. Form of Securities. Each Security and coupon shall be in one of
the forms approved from time to time by or pursuant to a Board Resolution or an
indenture supplemental hereto. Upon or prior to the delivery of a Security or
coupons in any such form to the Trustee for authentication, the Company shall
deliver to the Trustee the following: (i) such indenture supplemental hereto or
the Board Resolution by or pursuant to which such form of Security or coupons
has been approved, certified by the Secretary or an Assistant Secretary of the
Company;
(ii) the Officers' Certificate required by Section 3.01 of this Indenture;
(iii) the Company Order required by Section 3.03 of this Indenture; and
(iv) the Opinion of Counsel required by Section 3.03 of this Indenture.
If temporary Securities of any series are issued in global form as permitted by
Section 3.04, the form thereof shall be established as provided in Section 2.02.
SECTION 2.03. Form of Trustee's Certificate of Authentication.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
AS TRUSTEE
by_______________________
Authorized Officer
SECTION 2.04. Global Securities. If Securities of a series are issuable in whole
or in part in global form, as specified as contemplated by Section 3.01, then,
notwithstanding clause (xii) of Section 3.01 and the provisions of Section 3.02,
such Global Security shall represent such of the outstanding Securities of such
series as shall be specified therein and may provide that it shall represent the
aggregate amount of Outstanding Securities from time to time endorsed thereon
and that the aggregate amount of Outstanding Securities represented thereby may
from time to time be reduced or increased to reflect exchanges or increased to
reflect the issuance of additional uncertificated securities of such series. Any
endorsement of a Global Security to reflect the amount, or any increase or
decrease in the amount, of Outstanding Securities represented thereby shall be
made in such manner and upon instructions given by such Person or Persons as
shall be specified therein or in the Company Order to be delivered to the
Trustee pursuant to Section 3.03 or Section 3.04.
Page 21
Global Securities may be issued in either registered or bearer form and in
either temporary or permanent form.
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Title and Terms. The aggregate principal amount of Securities
which may be authenticated and delivered under this Indenture is unlimited. The
Securities may be issued up to the aggregate principal amount of Securities from
time to time authorized by or pursuant to a Board Resolution.
The Securities may be issued in one or more series. All Securities of each
series issued under this Indenture shall in all respects be equally and ratably
entitled to the benefits hereof with respect to such series without preference,
priority or distinction on account of the actual time or times of the
authentication and delivery or Maturity of the Securities of such series. There
shall be established in or pursuant to a Board Resolution, and set forth in, or
determined in the manner provided in, an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series,
(i) the title of the Securities of the series (which shall distinguish the
Securities of the series from all other Securities);
(ii) any limit upon the aggregate principal amount or aggregate initial public
offering price of the Securities of the series which may be authenticated and
delivered under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Securities of that series pursuant to this Article Three or Sections 4.07,
9.06 or 15.03);
(iii) the priority of payment, if any, of the Securities;
(iv) The price or prices (which may be expressed as a percentage of the
aggregate principal amount thereof) at which the Securities will be issued;
(v) the date or dates on which the principal and premium, if any, of the
Securities of the series is payable;
(vi) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method or methods by which such rates may be
determined, if any, the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest shall be payable, the Regular
Record Date for the interest payable on any Interest Payment Date and the basis
upon which interest shall be calculated if other than that of a 360-day year
consisting of twelve 30-day months;
(vii) the extent to which any of the Securities will be issuable in temporary or
permanent global form, and in such case, the Depositary for such Global Security
or Securities, the terms and conditions, if any, upon which such Global Security
may be exchanged in whole or in part for definitive securities, and the manner
in which any interest payable on a temporary or permanent Global Security will
be paid, whether or not consistent with Section 3.04 or 3.05;
(viii) the office or offices or agency where, subject to Section 5.02, the
Securities may be presented for registration of transfer or exchange;
(ix) the place or places where, subject to the provisions of Section 5.02, the
principal of (and premium, if any) and interest, if any, on Securities of the
series shall be payable;
(x) the period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of the series may be redeemed, in
whole or in part, at the option of the Company;
(xi) the obligation, if any, of the Company to redeem or purchase Securities of
the series pursuant to any sinking fund or analogous provisions or at the option
of a Holder thereof and the period or periods within which, the price or prices
at which and the terms and conditions upon which Securities of the series shall
be redeemed or purchased, in whole or in part, pursuant to such obligation;
(xii) if other than denominations of $1,000 and any integral multiple thereof,
the denominations in which Registered Securities of the series shall be
issuable; and, if other than $5,000 or any integral multiple thereof, the
denominations in which Bearer Securities of the series shall be issuable;
(xiii) the currency or currencies of denominations of the Securities of any
series, which may be in Dollars, any Foreign Currency or any composite currency,
including but not limited to the ECU, and, if any such currency of denomination
is a composite currency other than the ECU, the agency or organization, if any,
responsible for overseeing such composite currency;
(xiv) the currency or currencies in which payment of the principal of (and
premium, if any) and interest on the Securities will be made, the currency or
currencies, if any, in which payment of the principal of (and premium, if any)
or the interest on Registered Securities,
Page 22
at the election of each of the Holders thereof, may also be payable and the
periods within which and the terms and conditions upon which such election is to
be made and the Exchange Rate and the Exchange Rate Agent;
(xv) if the amount of payments of principal of (and premium, if any) or any
interest on Securities of the series may be determined with reference to an
index, the method or methods by which such amounts shall be determined;
(xvi) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities or both, whether Securities of the series are to
be issuable with or without coupons or both and, in the case of Bearer
Securities, the date as of which such Bearer Securities shall be dated if other
than the date of original issuance of the first Security of such series of like
tenor and term to be issued;
(xvii) whether, and under what conditions, additional amounts will be payable to
Holders of Securities of the series pursuant to Section 5.04;
(xviii) whether any of the Securities will be issued as Original Issue Discount
Securities and the portion of the principal amount of such Securities which
shall be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 7.02;
(xix) information with respect to book-entry procedures, if any;
(xx) any addition to or change in the Events of Default or covenants of the
Company pertaining to the Securities of the series; and
(xxi) any other terms of the series.
All Securities of any one series and the coupons appertaining to Bearer
Securities of such series, if any, shall be substantially identical except, in
the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution and set forth, or
determined in the manner provided in such Officers' Certificate or in any
indenture supplement hereto.
Securities of any particular series may be issued at various times, with
different dates on which the principal or any installment of principal is
payable, with different rates of interest, if any, or different methods by which
rates of interest may be determined, with different dates on which such interest
may be payable and with different Redemption Dates or Repayment Dates and may be
denominated in different currencies or payable in different currencies.
All Securities shall be subordinate and junior in right of payment to the
obligations of the Company to holders of Senior Indebtedness and creditors in
respect of General Obligations of the Company as provided in Article Fourteen.
Notwithstanding Section 3.01(ii) and unless otherwise expressly provided with
respect to a series of Securities, the aggregate principal amount of a series of
Securities may be increased and additional Securities of such series may be
issued up to the maximum aggregate principal amount authorized with respect to
such series as increased.
SECTION 3.02. Denominations. The Securities of each series shall be issuable in
such form and denominations as shall be specified as contemplated by Section
3.01. In the absence of any specification with respect to the Securities of any
series, the Registered Securities of each series shall be issuable only as
Securities without coupons in denominations of $1,000 and any integral multiple
thereof and the Bearer Securities of each series, if any, shall be issuable with
coupons and in denominations of $5,000 and any integral multiple thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating. The Securities
shall be executed on behalf of the Company by its Chairman of the Board, its
President, a Vice Chairman of the Board, or one of its Vice Presidents, or its
Treasurer and by its Secretary or one of its Assistant Secretaries. The
signatures of any or all of these officers on the Securities may be manual or
facsimile. Coupons shall bear the facsimile signature of the Company's Chairman
of the Board, its President, a Vice Chairman of the Board or one of its Vice
Presidents, or its Treasurer.
Securities and coupons bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series, together with any
coupons appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee shall, upon receipt of the Company
Order, authenticate and deliver such Securities as in this Indenture provided
and not otherwise; provided, however, that, in connection with its original
issuance, no Bearer Security shall be mailed or otherwise delivered to any
location in the United States; and provided further that a Bearer Security may
be delivered in connection with its original issuance only if the Person
entitled to receive such Bearer Security shall have delivered to the Trustee, or
such other Person as shall be specified in a temporary Global Security delivered
pursuant to Section 3.04, a certificate in the form required by Section 3.11(i).
Page 23
If the Company shall establish pursuant to Section 3.01 that the Securities of a
series are to be issued in whole or in part in the form of one or more Global
Securities in registered or permanent bearer form, then the Company shall
execute and the Trustee shall, in accordance with this Section and a Company
Order for the authentication and delivery of such Global Securities with respect
to such series, authenticate and deliver one or more Global Securities in
permanent or temporary form that (i) shall represent and shall be denominated in
an aggregate amount equal to the aggregate principal amount of the Outstanding
Securities of such series to be represented by one or more Global Securities,
(ii) shall be registered, if in registered form, in the name of the Depositary
for such Global Security or Securities or the nominee of such Depositary and
(iii) shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instructions.
Each Depositary designated pursuant to Section 3.01 for a Global Security in
registered form must, at the time of its designation and at all times while it
serves as Depositary, be a clearing agency registered under the Exchange Act,
and any other applicable statute or regulation.
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 8.01) shall be fully protected in
relying upon, an Opinion of Counsel complying with Section 1.02 and stating
that,
(i) the form of such Securities and coupons, if any, has been established in
conformity with the provisions of this Indenture;
(ii) the terms of such Securities and coupons, if any, or the manner of
determining such terms have been established in conformity with the provisions
of this Indenture;
(iii) that such Securities and coupons, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company, enforceable against the Company in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws of general applicability relating to
or affecting the enforcement of creditors' rights and to general principles of
equity; and
(iv) such other matters as the Trustee may reasonably request.
The Trustee shall not be required to authenticate such Securities if the issue
thereof will adversely affect the Trustee's own rights, duties or immunities
under the Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.01 and of this Section 3.03, if all
Securities of a series are not to be originally issued at one time, it shall not
be necessary to deliver the Board Resolution or Officers' Certificate otherwise
required pursuant to Section 3.01 or the Company Order and Opinion of Counsel
otherwise required pursuant to this Section 3.03 at or prior to the time of
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued and such documents reasonably contemplate the
issuance of all Securities of such series; provided that any subsequent request
by the Company to the Trustee to authenticate Securities of such series upon
original issuance shall constitute a representation and warranty by the Company
that as of the date of such request, the statements made in the Officers'
Certificate or other certificates delivered pursuant to Sections 1.02 and 3.01
shall be true and correct as if made on such date.
A Company Order, Officers' Certificate or Board Resolution or supplemental
indenture delivered by the Company to the Trustee in the circumstances set forth
in the preceding paragraph may provide that Securities which are the subject
thereof will be authenticated and delivered by the Trustee or its agent on
original issue from time to time in the aggregate principal amount, if any,
established for such series pursuant to such procedures acceptable to the
Trustee as may be specified from time to time by Company Order upon the
telephonic (promptly confirmed in writing), electronic or written order of
Persons designated in such Company Order, Officers' Certificate, supplemental
indenture or Board Resolution and that such Persons are authorized to determine,
consistent with such Company Order, Officers' Certificate, supplemental
indenture or Board Resolution, such terms and conditions of said Securities as
are specified in such Company Order, Officers' Certificate, supplemental
indenture or Board Resolution.
Each Registered Security shall be dated the date of its authentication; and
unless otherwise specified as contemplated by Section 3.01, each Bearer Security
and any temporary Global Security referred to in Section 3.04 shall be dated as
of the date of original issuance of such Security.
No Security or coupon appertaining thereto shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose, unless there
appears on such Security a certificate of authentication substantially in the
form provided for herein executed by the Trustee by manual signature of an
authorized officer, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder. Except as permitted by Section 3.06, the Trustee shall
not authenticate and deliver any Bearer Security unless all appurtenant coupons
for interest then matured have been
Page 24
detached and canceled. Notwithstanding the foregoing, if any Security or portion
thereof shall have been duly authenticated and delivered hereunder but never
issued and sold by the Company, and the Company shall deliver such Security to
the Trustee for cancelation as provided in Section 3.09 together with a written
statement (which need not comply with Section 1.02 and need not be accompanied
by an Opinion of Counsel) stating that such Security or portion thereof has
never been issued and sold by the Company, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
SECTION 3.04. Temporary Securities. (a) Pending the preparation of definitive
Securities of any series, the Company may execute, and upon Company Order and
the receipt of the certifications and opinions required under Sections 3.01 and
3.03, the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denominations, substantially of the tenor of the definitive
Securities in lieu of which they are issued in registered form or, if
authorized, in bearer form with one or more coupons or without coupons, and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities. In the case of any series which may be issuable as
Bearer Securities, such temporary Securities may be in global form, representing
such of the Outstanding Securities of such series as shall be specified therein.
(b) Unless otherwise provided pursuant to Section 3.01:
(i) Except in the case of temporary Securities in global form, each of which
shall be exchanged in accordance with the provisions of the following
paragraphs, if temporary Securities of any series are issued, the Company will
cause definitive Securities of such series to be prepared without unreasonable
delay. After the preparation of definitive Securities, the temporary Securities
of such series shall be exchangeable for definitive Securities of such series
upon surrender of the temporary Securities of such series at the office or
agency of the Company in a Place of Payment for that series, without charge to
the Holder. Upon surrender for cancelation of any one or more temporary
Securities of any series (accompanied, if applicable, by all unmatured coupons
and all matured coupons in default appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of such series of authorized
denominations; provided, however, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; and provided further
that a definitive Bearer Security shall be delivered in exchange for a temporary
Bearer Security only in compliance with the conditions set forth in the provisos
to the third paragraph of Section 3.03. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series.
(ii) If temporary Securities of any series are issued in global form, any such
temporary Global Security shall, unless otherwise provided in such temporary
Global Security, be delivered to the London office of a depositary or common
depositary (the "Common Depositary"), for the benefit of the operator of
Euroclear and CEDEL S.A., for credit to the respective accounts of the
beneficial owners of such Securities (or to such other accounts as they may
direct). Upon receipt of written instructions (which need not comply with
Section 1.02) signed on behalf of the Company by any Person authorized to give
such instructions, the Trustee or any Authenticating Agent shall endorse such
temporary Global Security to reflect the initial principal amount, or an
increase in the principal amount, of Outstanding Securities represented thereby.
Until such initial endorsement, such temporary Global Security shall not
evidence any obligation of the Company. Such temporary Global Security shall at
any time represent the aggregate principal amount of Outstanding Securities
theretofore endorsed thereon as provided above, subject to reduction to reflect
exchanges as described below.
(iii) Unless otherwise specified in such temporary Global Security, and subject
to the second proviso in the following paragraph, the interest of a beneficial
owner of Securities of a series in a temporary Global Security shall be
exchanged for definitive Securities (including a definitive Global Bearer
Security) of such series and of like tenor following the Global Exchange Date
(as defined below) when the account holder instructs Euroclear or CEDEL S.A., as
the case may be, to request such exchange on his behalf and delivers to
Euroclear or CEDEL S.A., as the case may be, a certificate in the form required
by Section 3.11(i), dated no earlier than 15 days prior to the Global Exchange
Date, copies of which certificate shall be available from the offices of
Euroclear and CEDEL S.A., the Trustee, any Authenticating Agent appointed for
such series of Securities and each Paying Agent. Unless otherwise specified in
such temporary Global Security, any such exchange shall be made free of charge
to the beneficial owners of such temporary Global Security, except that a Person
receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like in the event that such Person does not take delivery
of such definitive Securities in person at the offices of Euroclear or CEDEL
S.A. Definitive Securities in bearer form to be delivered in exchange for any
portion of a temporary Global Security shall be delivered only outside the
United States.
(iv) Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary Global
Security as the "Global Exchange Date" (the "Global Exchange Date"), the Company
shall deliver to the Trustee, or, if the Trustee appoints an Authenticating
Agent pursuant to Section 8.14, to any such Authenticating Agent, definitive
Securities in aggregate principal amount equal to the principal amount of such
temporary Global Security, executed by the Company. Unless otherwise specified
as contemplated by Section 3.01, such definitive Securities shall be in the form
of Bearer Securities or Registered Securities, or any combination thereof, as
may be specified by the Company, the Trustee or any such Authenticating Agent,
as may be
Page 25
appropriate. On or after the Global Exchange Date, such temporary Global
Security shall be surrendered by the Common Depositary to the Trustee or any
such Authenticating Agent, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge and the Trustee or any such Authenticating Agent shall
authenticate and deliver, in exchange for each portion of such temporary Global
Security, an equal aggregate principal amount of definitive Securities of the
same series, of authorized denominations and of like tenor as the portion of
such temporary Global Security to be exchanged, which, except as otherwise
specified as contemplated by Section 3.01, shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof; provided,
however, that unless otherwise specified in such temporary Global Security, upon
such presentation by the Common Depositary, such temporary Global Security is
accompanied by a certificate dated the Global Exchange Date or a subsequent date
and signed by Euroclear as to the portion of such temporary Global Security held
for its account then to be exchanged and a certificate dated the Global Exchange
Date or a subsequent date and signed by CEDEL S.A., as to the portion of such
temporary Global Security held for its account then to be exchanged, each in the
form required by Section 3.11(ii); and provided further that a definitive Bearer
Security (including a definitive global Bearer Security) shall be delivered in
exchange for a portion of a temporary Global Security only in compliance with
the conditions set forth in the provisos to the third paragraph of Section 3.03.
(v) Upon any exchange of a portion of any such temporary Global Security, such
temporary Global Security shall be endorsed by the Trustee or any such
Authenticating Agent, as the case may be, to reflect the reduction of the
principal amount evidenced thereby, whereupon its remaining principal amount
shall be reduced for all purposes by the amount so exchanged. Until so exchanged
in full, such temporary Global Security shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 3.01, interest payable on such temporary Global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Global Exchange Date shall be payable, without interest,
to Euroclear and CEDEL S.A. on or after such Interest Payment Date upon delivery
by Euroclear and CEDEL S.A. to the Trustee or the Paying Agent, as the case may
be, of a certificate or certificates in the form required by Section 3.11(iii),
for credit on or after such Interest Payment Date to the respective accounts of
the Persons who are the beneficial owners of such temporary Global Security on
such Interest Payment Date and who have each delivered to Euroclear or CEDEL
S.A., as the case may be, a certificate in the form required by Section
3.11(iv). Any interest so received by Euroclear and CEDEL S.A. and not paid as
herein provided prior to the Global Exchange Date shall be returned to the
Trustee or Paying Agent, as the case may be, which, upon expiration of two years
after such Interest Payment Date, shall repay such interest to the Company on
Company Request in accordance with Section 5.03.
SECTION 3.05. Registration, Registration of Transfer and Exchange. With respect
to Registered Securities, the Company shall keep or cause to be kept a register
(sometimes referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and the registration of transfers of
Registered Securities and the Company shall appoint a "Security Registrar", and
may appoint any "Co-Security Registrar", as may be appropriate, to keep the
Security Register. Such Security Register shall be in written form or in any
other form capable of being converted into written form within a reasonable
time. At all reasonable times the information contained in such Security
Register shall be available for inspection by the Trustee at the office of the
Security Registrar. In the event that any Registered Securities issued hereunder
have the City of New York as a Place of Payment, the Company shall appoint
either a Security Registrar or Co-Security Registrar located in the City of New
York.
Upon surrender for registration of transfer of any Registered Security of any
series at the office or agency of the Company maintained pursuant to Section
5.02 for such purpose in a Place of Payment for such series, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities of
such series of any authorized denominations and of a like aggregate principal
amount, tenor and Stated Maturity.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of such series, of any authorized
denominations and of like aggregate principal amount, tenor and Stated Maturity,
upon surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
Registered Securities may not be exchanged for Bearer Securities.
At the option of the Holder, Bearer Securities of any series may be exchanged
for Registered Securities of the same series of any authorized denominations and
of a like aggregate principal amount and tenor, upon surrender of the Bearer
Securities to be exchanged at any such office or agency, with all unmatured
coupons and all matured coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured coupon or coupons
or matured coupon or coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
in an amount equal to the face amount of such missing coupon or coupons, or the
surrender of such missing coupon or coupons may be waived by the Company and the
Trustee if there be furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to any Paying Agent any such missing
coupon in respect of which such a payment shall have been made, such Holder
shall be entitled to receive the amount of any such payment from the Company;
provided, however, that interest represented by coupons shall be payable only
upon presentation and surrender of those
Page 26
coupons at an office or agency of a Paying Agent, maintained pursuant to Section
5.02 for such purpose, located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such
office or agency in exchange for a Registered Security of the same series and
like tenor after the close of business at such office or agency on (i) any
Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related date for
payment of Defaulted Interest, such Bearer Security shall be surrendered without
the coupon relating to such Interest Payment Date or proposed date for payment,
as the case may be.
Notwithstanding any other provision of this Section, unless and until it is
exchanged in whole or in part for individual Securities represented thereby, a
Global Security representing all or a portion of the Securities of a series may
not be transferred except as a whole by the Depositary for such series to a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or 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.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
If at any time the Depositary for the Securities of a series notifies the
Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
such series shall no longer be eligible under Section 3.03, the Company shall
appoint a successor Depositary with respect to the Securities of such series. If
a successor Depositary for the Securities of such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such ineligibility, the Company's election pursuant to Section 3.01(vii)
shall no longer be effective with respect to the Securities of such series and
the Company will execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of definitive Securities of such series, will
authenticate and deliver Securities of such series of like tenor and terms in
definitive form in an aggregate principal amount equal to the principal amount
of the Global Security or Securities representing such series in exchange for
such Global Security or Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities. In such
event, the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, will authenticate and deliver, Securities of such series of like tenor
and terms in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such series
in exchange for such Global Security or Securities.
If specified by the Company pursuant to Section 3.01 with respect to a series of
Securities, the Depositary for such series of Securities may surrender a Global
Security for such series of Securities in exchange in whole or in part for
Securities of such series of like tenor and terms and in definitive form on such
terms as are acceptable to the Company, the Trustee and such Depositary.
Thereupon, the Company shall execute, and the Trustee upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, shall authenticate and deliver, without service charge:
(a) to the Depositary or to each Person specified by such Depositary a new
Security or Securities of the same series, of like tenor and terms and of any
authorized denomination as requested by such Person in aggregate principal
amount equal to and in exchange for such Person's beneficial interest in the
Global Security; and
(b) to such Depositary a new Global Security of like tenor and terms and in an
authorized denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal amount of
Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three paragraphs, the
Company will execute and the Trustee, pursuant to a Company Order, will
authenticate and deliver, Securities (a) in definitive registered form in
authorized denominations, if the Securities of such series are issuable as
Registered Securities, (b) in definitive bearer form in authorized
denominations, with coupons attached, if the Securities of such series are
issuable as Bearer Securities or (c) as either Registered or Bearer Securities,
if the Securities of such series are issuable in either form; provided, however,
that no definitive Bearer Security shall be delivered in exchange for a
temporary Global Security other than in accordance with the provisions of
Sections 3.03 and 3.04.
Upon the exchange of Global Securities for Securities in definitive form, such
Global Securities shall be canceled by the Trustee. Registered Securities issued
in exchange for a Global Security pursuant to this Section 3.05 shall be
registered in such names and in such authorized denominations, and delivered to
such addresses, as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee in writing. The Trustee shall deliver such Registered
Securities to the Persons in whose names such Securities are so registered or to
the Depositary. The Trustee shall deliver Bearer Securities issued in exchange
for a Global Security pursuant to this Section 3.05 to the Depositary or to the
Persons at such addresses, and in such authorized denominations, as the
Depositary for such Global Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee in writing;
provided, however, that no definitive Bearer Security shall be delivered
Page 27
in exchange for a temporary Global Security other than in accordance with the
provisions of Sections 3.03 and 3.04.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or exchange
shall (if so required by the Company or the Security Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided in the Securities to be registered for transfer or
exchanged, no service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may (unless otherwise provided in such
Securities) require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges expressly provided in
this Indenture to be made at the Company's own expense or without expense or
without charge to Holders.
Neither the Company, the Security Registrar nor any Co-Security Registrar shall
be required (i) to issue, register the transfer of or exchange any Securities of
any series during a period beginning at the opening of business 15 days before
the day of selection of Securities of such series to be redeemed and ending at
the close of business on (A) if Securities of the series are issuable only as
Registered Securities, the day of the mailing of the relevant notice of
redemption of Registered Securities of such series so selected for redemption or
(B) if Securities of the series are issuable as Bearer Securities, the day of
the first publication of the relevant notice of redemption or, if Securities of
the series are also issuable as Registered Securities and there is no
publication, the mailing of the relevant notice of redemption, or (ii) to
register the transfer or exchange of any Securities or portions thereof so
selected for redemption.
Notwithstanding anything herein to the contrary, the exchange of Bearer
Securities into Registered Securities shall be subject to applicable laws and
regulations in effect at the time of exchange; none of the Company, the Trustee
nor the Security Registrar shall exchange any Bearer Securities into Registered
Securities if it has received an Opinion of Counsel that as a result of such
exchanges the Company would suffer adverse consequences under the United States
federal income tax laws and regulations then in effect and the Company has
delivered to the Trustee a Company Order directing the Trustee not to make such
exchanges unless and until the Trustee receives a subsequent Company Order to
the contrary. The Company shall deliver copies of such Company Orders to the
Security Registrar.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities. If (i) any
mutilated Security or Security with a mutilated coupon is surrendered to the
Trustee or the Security Registrar, or if the Company, the Trustee and the
Security Registrar receive evidence to their satisfaction of the destruction,
loss or theft of any Security or coupon and (ii) there is delivered to the
Company, the Trustee and the Security Registrar such security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice to the Company, the Trustee or the Security Registrar that such Security
has been acquired by a bona fide purchaser, the Company shall execute and upon
its request the Trustee shall authenticate and deliver, in lieu of any such
mutilated, destroyed, lost or stolen Security or in exchange for the Security to
which a mutilated, destroyed, lost or stolen coupon appertains (with all
appurtenant coupons not mutilated, destroyed, lost or stolen), a new Security of
the same series and Stated Maturity and of like tenor and principal amount,
bearing a number not contemporaneously outstanding and, if applicable, with
coupons corresponding to the coupons appertaining thereto; provided, however,
that any new Bearer Security will be delivered only in compliance with the
conditions set forth in Section 3.05.
In case any such mutilated, destroyed, lost or stolen Security or coupon has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security; provided, however, that
payment of principal of (and premium, if any) and any interest on Bearer
Securities shall be payable only at an office or agency located outside the
United States, and, in the case of interest, unless otherwise specified as
contemplated by Section 3.01, only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with its coupons, if any, issued pursuant to
this Section in lieu of any destroyed, lost or stolen Security, or in exchange
for a Security with a destroyed, lost or stolen coupon, shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security and its coupons, if any, or the destroyed,
lost or stolen coupon shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of the same series and their coupons, if any, duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the
Page 28
replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons.
SECTION 3.07. Payment of Interest; Interest Rights Preserved. Unless otherwise
provided as contemplated by Section 3.01, interest on any Registered Security
which is payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall unless otherwise provided in such Security be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest. Unless otherwise specified as contemplated by Section 3.01, in case a
Bearer Security of any series is surrendered in exchange for a Registered
Security of such series after the close of business (at an office or agency
referred to in Section 3.05) on any Regular Record Date and before the opening
of business (at such office or agency) on the next succeeding Interest Payment
Date, such Bearer Security shall be surrendered without the coupon relating to
such Interest Payment Date and interest will not be payable on such Interest
Payment Date in respect of the Registered Security issued in exchange for such
Bearer Security, but will be payable only to the Holder of such coupon when due
in accordance with the provisions of this Indenture. At the option of the
Company, payment of interest on any Registered Security may be made by check in
the currency designated for such payment pursuant to the terms of such
Registered Security mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register or by wire transfer to an account
in such currency designated by such Person in writing not later than ten days
prior to the date of such payment.
Any interest on any Registered Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of his having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (i) or clause (ii) below.
(i) The Company may elect to make payments of any Defaulted Interest to the
Persons in whose names any such Registered Securities (or their respective
Predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Registered Security and
the date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 nor less than 10 days prior
to the date of the proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed, first
class, postage prepaid, to each Holder at his address as it appears in the
Security Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been mailed as aforesaid, such Defaulted Interest shall be
paid to the Persons in whose names such Registered Securities (or their
respective Predecessor Securities) are registered on such Special Record Date
and shall no longer be payable pursuant to the following clause (ii). In case a
Bearer Security of any series is surrendered at the office or agency in a Place
of Payment for such series in exchange for a Registered Security of such series
after the close of business at such office or agency on any Special Record Date
and before the opening of business at such office or agency on the related
proposed date of payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date for payment and
Defaulted Interest will not be payable on such proposed date for payment in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
(ii) The Company may make payment of any Defaulted Interest in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Securities with respect to which there exists such default may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to
this clause, such payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security delivered
under this Indenture upon registration of transfer of, or in exchange for, or in
lieu of, any other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
Subject to the limitations set forth in Section 5.02, the Holder of any coupon
appertaining to a Bearer Security shall be entitled to receive the interest
payable on such coupon upon presentation and surrender of such coupon on or
after the Interest Payment Date of such coupon at an office or agency maintained
for such purpose pursuant to Section 5.02.
SECTION 3.08. Persons Deemed Owners. Title to any Bearer Security, any coupons
appertaining thereto and any temporary Global Security shall pass by delivery.
Prior to due presentment for registration of transfer of any Registered
Security, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of, premium, if
any, and (subject to Section 3.07) interest on such Security, and for all
purposes
Page 29
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee may treat
the bearer of any Bearer Security and the bearer of any coupon as the absolute
owner of such Security or coupon for the purpose of receiving payment thereof or
on account thereof and for all other purposes whatsoever whether or not such
Security or coupon be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent, any Authenticating Agent or
the Security Registrar will have the responsibility or liability for any aspect
of the records relating to or payments made on account of beneficial ownership
interest of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interest, and they shall be fully
protected in acting or refraining from acting on any such information provided
by the Depositary.
SECTION 3.09. Cancellation. Unless otherwise provided with respect to a series
of Securities, all Securities and coupons surrendered for payment, registration
of transfer, exchange, repayment or redemption shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee. All Securities so
delivered or surrendered directly to the Trustee for any such purpose shall be
promptly cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all Securities
so delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture or such
Securities. All cancelled Securities or coupons held by the Trustee shall be
disposed of by the Trustee in accordance with its customary procedures and the
Trustee shall deliver a certificate of such disposition to the Company.
SECTION 3.10. Computation of Interest. Interest on the Securities of each series
shall be computed as shall be specified as contemplated by Section 3.01.
SECTION 3.11. Form of Certification. Unless otherwise provided pursuant to
Section 3.01:
(i) Whenever any provision of this Indenture or the forms of Securities
contemplate that certification be given by a Person entitled to receive a Bearer
Security, such certification shall be provided substantially in the form of
Exhibit A hereto, with only such changes as shall be approved by the Company.
(ii) Whenever any provision of this Indenture or the forms of Securities
contemplate that certification be given by Euroclear and CEDEL S.A. in
connection with the exchange of a portion of a temporary Global Security, such
certification shall be provided substantially in the form of Exhibit B hereto,
with only such changes as shall be approved by the Company.
(iii) Whenever any provision of the Indenture or the forms of Securities
contemplate that certification be given by Euroclear and CEDEL S.A. in
connection with payment of interest with respect to a temporary Global Security
prior to the related Global Exchange Date, such certification shall be provided
substantially in the form of Exhibit C hereto, with only such changes as shall
be approved by the Company.
(iv) Whenever any provision of the Indenture or the forms of Securities
contemplate that certification be given by a beneficial owner of a portion of a
temporary Global Security in connection with payment of interest with respect to
a temporary Global Security prior to the related Global Exchange Date, such
certification shall be provided substantially in the form of Exhibit D hereto,
with only such changes as shall be approved by the Company.
SECTION 3.12. Judgments. The Company may provide, pursuant to Section 3.01, for
the Securities of any series that, to the fullest extent possible under
applicable law and except as may otherwise be specified as contemplated in
Section 3.01, (a) the obligation, if any, of the Company to pay the principal of
(and premium, if any) and interest on the Securities of any series and any
appurtenant coupons in a Foreign Currency, composite currency or Dollars (the
"Designated Currency") as may be specified pursuant to Section 3.01 is of the
essence and agrees that judgments in respect of such Securities shall be given
in the Designated Currency; (b) the obligation of the Company to make payments
in the Designated Currency of the principal of (and premium, if any) and
interest on such Securities and any appurtenant coupons shall, notwithstanding
any payment in any other currency (whether pursuant to a judgment or otherwise),
be discharged only to the extent of the amount in the Designated Currency that
the Holder receiving such payment may, in accordance with normal banking
procedures, purchase with the sum paid in such other currency (after any premium
and cost of exchange) in the country of issue of the Designated Currency in the
case of Foreign Currency or Dollars or in the international banking community in
the case of a composite currency on the Business Day immediately following the
day on which such Holder receives such payment; (c) if the amount in the
Designated Currency that may be so purchased for any reason falls short of the
amount originally due, the Company shall pay such additional amounts as may be
necessary to compensate for such shortfall; and (d) any obligation of the
Company not discharged by such payment shall be due as a separate and
independent obligation and, until discharged as provided herein, shall continue
in full force and effect.
Page 30
SECTION 3.13 CUSIP Numbers. The Company in issuing the Securities may use
"CUSIP" numbers or Euroclear or CEDEL reference numbers (if then generally in
use), and if, so, the Trustee shall use such numbers in notices of redemption or
other related material as a convenience to Holders; provided that any such
notice or other related material may state that no representation is made as to
the correctness of such numbers either as printed on the Securities or as
contained in any notice of redemption or other related material and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 4.01. Applicability of Article. Securities of any series which are
redeemable before their Stated Maturity shall be redeemable in accordance with
their terms and, except as otherwise specified as contemplated by Section 3.01
for Securities of any series, in accordance with this Article.
SECTION 4.02. Election To Redeem; Notice to Trustee. The election of the Company
to redeem any Securities redeemable at the option of the Company shall be
evidenced by an Officers' Certificate. In case of any redemption at the election
of the Company of the Securities of any series, the Company shall, at least 60
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee and the Security
Registrar of such Redemption Date and of the principal amount of Securities of
such series to be redeemed. In the case of any redemption of Securities (i)
prior to the expiration of any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture, or (ii) pursuant to an
election of the Company which is subject to a condition specified in the terms
of such Securities, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction or condition.
SECTION 4.03. Selection by Security Registrar of Securities To Be Redeemed. If
less than all the Securities of any series with the same terms are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Security Registrar from the
Outstanding Securities of such series having such terms not previously called
for redemption, by such method as the Security Registrar shall deem fair and
appropriate and which may provide for the selection for redemption of portions
of the principal amount of Securities of such series of a denomination equal to
or larger than the minimum authorized denomination for Securities of such
series. Unless otherwise provided by the terms of the Securities of any series
so selected for partial redemption, the portions of the principal of Securities
of such series so selected for partial redemption shall be, in the case of
Registered Securities, equal to $1,000 or an integral multiple thereof or, in
the case of Bearer Securities, equal to $5,000 or an integral multiple thereof,
and the principal amount of any such Security which remains outstanding shall
not be less than the minimum authorized denomination for Securities of such
series.
The Security Registrar shall promptly notify the Company, the Trustee and the
Co-Security Registrar, if any, in writing of the Securities selected for
redemption and, in the case of any Security selected for partial redemption, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the case of
any Security redeemed or to be redeemed only in part, to the portion of the
principal of such Security which has been or is to be redeemed.
SECTION 4.04. Notice of Redemption. Notice of redemption shall be given in the
manner provided in Section 1.06, not less than 30 nor more than 60 days prior to
the Redemption Date, to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) if less than all Outstanding Securities of any series having the same
terms are to be redeemed, the identification (and, in the case of partial
redemption, the respective principal amounts) of the particular Securities to be
redeemed;
(iv) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security to be redeemed, and that interest, if any,
thereon shall cease to accrue on and after said date;
(v) the place or places where such Securities, together in the case of Bearer
Securities with all remaining coupons appertaining thereto, if any, maturing
after the Redemption Date, are to be surrendered for payment of the Redemption
Price;
(vi) that the redemption is for a sinking fund, if such is the case; and
Page 31
(vii) the CUSIP number or the Euroclear or the CEDEL reference number (or any
other number used by a Depositary to identify such Securities), if any, of the
Securities to be redeemed.
A notice of redemption published as contemplated by Section 1.06(2) need not
identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of the Company
shall be given by the Company or, on Company Request, by the Trustee in the name
and at the expense of the Company.
SECTION 4.05. Deposit of Redemption Price. At or prior to the opening of
business on any Redemption Date, the Company shall deposit or cause to be
deposited with the Trustee or with a Paying Agent (or, if the Company is acting
as its own Paying Agent, segregate and hold in trust as provided in Section
5.03) an amount of money sufficient to pay the Redemption Price of all the
Securities which are to be redeemed on that date; provided, however, that
deposits with respect to Bearer Securities shall be made with a Paying Agent or
Paying Agents located outside the United States except as otherwise provided in
Section 5.02, unless otherwise specified as contemplated by Section 3.01.
SECTION 4.06. Securities Payable on Redemption Date. Notice of redemption having
been given as aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified and from and after such date (unless the Company shall default in the
payment of the Redemption Price) such Securities shall cease to bear interest
and the coupons for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. Upon surrender of
any such Securities for redemption in accordance with said notice, such
Securities shall be paid by the Company at the Redemption Price; provided,
however, that installments of interest on Bearer Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 3.01, only upon presentation and surrender
of coupons for such interest. Installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such on the close of business on the relevant Regular Record Dates
according to their terms and the provisions of Section 3.07.
If any Bearer Security surrendered for redemption shall not be accompanied by
all appurtenant coupons maturing after the Redemption Date, such Security may be
paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall surrender
to the Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted; provided, however, that interest
represented by coupons shall be payable only at an office or agency located
outside the United States and, unless otherwise specified as contemplated by
Section 3.01, only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be paid upon surrender thereof
for redemption, the principal shall, until paid, bear interest from the
Redemption Date at the rate borne by such Security, or as otherwise provided in
such Security.
SECTION 4.07. Securities Redeemed in Part. Any Security which is to be redeemed
only in part shall be surrendered at the office or agency of the Company in a
Place of Payment therefor (with, if the Company or the Security Registrar so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder of such Security or his attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series and Stated Maturity, containing identical terms and conditions,
of any authorized denominations as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
SECTION 4.08. Redemption Suspended During Event of Default. The Trustee shall
not redeem any Securities (unless all Securities then Outstanding are to be
redeemed) or commence the giving of any notice of redemption of Securities
during the continuance of any Event of Default known to the Trustee, except that
where the giving of notice of redemption of any Securities shall theretofore
have been made, the Trustee shall, subject to the provisions of Section 14.04,
redeem such Securities, provided funds are deposited with it for such purpose.
Subject to the rights of the holders of Senior Indebtedness and creditors in
respect of General Obligations, except as aforesaid, any moneys theretofore or
thereafter received by the Trustee shall, during the continuance of such Event
of Default, be held in trust for the benefit of the Holders and applied in the
manner set forth in Section 7.06; provided, however, that in case such Event of
Default shall have been waived as provided herein or otherwise cured, such
moneys shall thereafter be held and applied in accordance with the provisions of
this Article.
Page 32
ARTICLE FIVE
COVENANTS
SECTION 5.01. Payment of Principal, Premium and Interest. The Company covenants
and agrees for the benefit of each series of Securities that it will duly and
punctually pay the principal of, premium, if any, and interest on the Securities
of such series in accordance with the terms of the Securities of such series,
any coupons appertaining thereto and this Indenture. Unless otherwise specified
as contemplated by Section 3.01 with respect to any series of Securities, any
interest due on Bearer Securities on or before Maturity shall be payable only
outside the United States upon presentation and surrender of the several coupons
for such interest installments as are evidenced thereby as they severally
mature.
SECTION 5.02. Maintenance of Office or Agency. If Securities of a series are
issuable only as Registered Securities, the Company will maintain in each Place
of Payment for any series of Securities an office or agency where Securities of
that series may be presented or surrendered for payment, where Securities of
that series may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and of any change in the
location, of such office or agency. If Securities of a series may be issuable as
Bearer Securities, the Company will maintain (A) in the Borough of Manhattan,
the City of New York an office or agency where any Registered Securities of that
series may be presented or surrendered for payment, where any Registered
Securities of that series may be surrendered for registration of transfer, where
Securities of that series may be surrendered for exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served, (B) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series which is located outside the
United States, an office or agency where Securities of that series and related
coupons may be presented and surrendered for payment (including payment of any
additional amounts payable on Securities of that series pursuant to Section
5.04); provided, however, that if the Securities of that series are listed on
The International Stock Exchange of the United Kingdom and the Republic of
Ireland Limited or the Luxembourg Stock Exchange or any other stock exchange
located outside the United States and such stock exchange shall so require, the
Company will maintain a Paying Agent for the Securities of that series in London
or Luxembourg or any other required city located outside the United States, as
the case may be, so long as the Securities of that series are listed on such
exchange, and (C) subject to any laws or regulations applicable thereto, in a
Place of Payment for such series located outside the United States an office or
agency where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered for
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and any change in the
location, of any such office or agency. If at any time the Company shall fail to
maintain any such required office or agency in respect of any series of
Securities or shall fail to furnish the Trustee with the address thereof, such
presentations, and surrenders of Securities of that series may be made and
notices and demands may be made or served at the Principal Corporate Trust
Office of the Trustee, except that Bearer Securities of that series and the
related coupons may be presented and surrendered for payment (including payment
of any additional amounts payable on Bearer Securities of that series pursuant
to Section 5.04) at the place specified for the purpose as contemplated by
Section 3.01, and the Company hereby appoints the Trustee as its agent to
receive such respective presentations, surrenders, notices and demands.
Except as otherwise provided in the form of Bearer Security of any particular
series pursuant to the provisions of this Indenture, no payment of principal,
premium or interest on Bearer Securities shall be made at any office or agency
of the Company in the United States or by check mailed to any address in the
United States or by transfer to an account maintained with a bank located in the
United States; provided, however, payment of principal of and any premium and
interest denominated in Dollars (including additional amounts payable in respect
thereof) on any Bearer Security may be made at an office or agency of, and
designated by, the Company located in the United States if (but only if) payment
of the full amount of such principal, premium, interest or additional amounts in
Dollars at all offices outside the United States maintained for the purpose by
the Company in accordance with this Indenture is illegal or effectively
precluded by exchange controls or similar restrictions and the Trustee receives
an Opinion of Counsel that such payment within the United States is legal.
Unless otherwise provided as contemplated by Section 3.01 with respect to any
series of Securities, at the option of the Holder of any Bearer Security or
related coupon, payment may be made by check in the currency designated for such
payment pursuant to the terms of such Bearer Security presented or mailed to an
address outside the United States or by transfer to an account in such currency
maintained by the payee with a bank located outside the United States.
The Company may also from time to time designate one or more other offices or
agencies where the Securities of one or more series may be presented or
surrendered for any or all of such purposes specified above in this Section and
may constitute and appoint one or more Paying Agents for the payment of such
Securities, in one or more other cities, and may from time to time rescind such
designations and appointments; provided, however, that no such designation,
appointment or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency. Unless and until the Company
rescinds one or more such appointments, the Company hereby appoints The Chase
Manhattan Bank, as its Paying Agent in the City of New York with respect to all
series of Securities having a Place of Payment in the City of New York.
Page 33
SECTION 5.03. Money for Security Payments To Be Held in Trust. If the Company
shall at any time act as its own Paying Agent for any series of Securities, it
will, on or before each due date of the principal of, premium, if any, or
interest on any of the Securities of such series and any appurtenant coupons,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal, premium or interest so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided, and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, at or prior to the opening of business on each due date of
the principal of, premium, if any, or interest on any Securities of such series
and any appurtenant coupons, deposit with a Paying Agent a sum sufficient to pay
the principal, premium or interest so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal, premium or interest,
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee for any series
of Securities to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee subject to the provisions of this
Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of principal of, premium, if any,
or interest on Securities of such series and any appurtenant coupons in trust
for the benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(ii) give the Trustee notice of any default by the Company (or any other obligor
upon the Securities of such series) in the making of any payment of principal,
premium or interest on the Securities of such series or any appurtenant coupons;
and
(iii) at any time during the continuance of any such default, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held in trust
by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such Paying
Agent, and, upon such payments by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of, premium, if any, or
interest on any Security of any series or any appurtenant coupons and remaining
unclaimed for two years after such principal, premium or interest has become due
and payable shall be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust, and the Holder of such
Security or any coupon appertaining thereto shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in an Authorized Newspaper in each Place of Payment, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 5.04. Additional Amounts. If the Securities of a series provide for the
payment of additional amounts, the Company will pay to the Holder of any
Security of any series or any coupon appertaining thereto additional amounts as
provided therein. Whenever in this Indenture there is mentioned, in any context,
the payment of the principal of (or premium, if any) or interest on, or in
respect of, any Security of any series or payment of any related coupon or the
net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of additional
amounts provided for in this Section to the extent that, in such context,
additional amounts are, were or would be payable in respect thereof pursuant to
the provisions of this Section and express mention of the payment of additional
amounts (if applicable) in any provisions hereof shall not be construed as
excluding additional amounts in those provisions hereof where such express
mention is not made.
If the Securities of a series provide for the payment of additional amounts, at
least 10 days prior to the first Interest Payment Date with respect to that
series of Securities (or if the Securities of that series will not bear interest
prior to Maturity, the first day on which a payment of principal (and premium,
if any) is made), and at least 10 days prior to each date of payment of
principal (and premium, if any) or interest if there has been any change with
respect to the matters set forth in the below- mentioned Officers' Certificate,
the Company will furnish the Trustee and the Company's Principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of (and premium, if any) or interest on the Securities of
that series shall be made to Holders of Securities of that series or any related
coupons who are United States Aliens without withholding for or on account of
any tax, assessment or other governmental charge described in the Securities of
that series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities or coupons and the Company will
pay to the
Page 34
Trustee or such Paying Agent the additional amounts required by this Section.
The Company covenants to indemnify the Trustee and any Paying Agent for, and to
hold them harmless against, any loss, liability or expense reasonably incurred
without negligence or bad faith on their part arising out of or in connection
with actions taken or omitted by any of them in reliance on any Officers'
Certificate furnished pursuant to this Section.
SECTION 5.05. Statement as to Compliance. The Company will deliver to the
Trustee, within 120 days after the end of each fiscal year of the Company, an
Officers' Certificate (which need not comply with Section 1.02) (provided,
however, that one of the signatories of which shall be the Company's principal
executive officer, principal financial officer or principal accounting officer)
stating, as to each signer thereof, that:
(i) a review of the activities of the Company during such year and of
performance under this Indenture and under the terms of the Securities has been
made under his supervision; and
(ii) to the best of his knowledge, based on such review, (a) the Company has
fulfilled all its obligations and complied with all conditions and covenants
under this Indenture and under the terms of the Securities throughout such year,
or, if there has been a default in the fulfillment of any such obligation,
condition or covenant specifying each such default known to him and the nature
and status thereof, and (b) no event has occurred and is occurring which is, or
after notice or lapse of time or both would become, a Default, or if such an
event has occurred and is continuing, specifying such event known to him and the
nature and status thereof.
For purposes of this Section, compliance or default shall be determined without
regard to any period of grace or requirement of notice provided for herein.
SECTION 5.06. Maintenance of Corporate Existence, Rights and Franchises. So long
as any of the Securities shall be Outstanding, the Company will do or cause to
be done all things necessary to preserve and keep in full force and effect its
corporate existence, rights and franchises to carry on its business; provided,
however, that nothing in this Section 5.06 shall (i) require the Company to
preserve any such right or franchise if the Board of Directors shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and that the loss thereof is not disadvantageous in any
material respect to the Holders, (ii) prevent any consolidation or merger of the
Company, or any conveyance or transfer of its property and assets substantially
as an entirety to any person, permitted by Article Ten, (iii) prevent the
liquidation or dissolution of the Company after any conveyance or transfer of
its property and assets substantially as an entirety to any person permitted by
Article Ten.
ARTICLE SIX
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 6.01. Company To Furnish Trustee Names and Addresses of Holders. The
Company will furnish or cause to be furnished to the Trustee (i) semiannually,
not more than 10 days after each March 1 and September 1, a list, in such form
as the Trustee may reasonably require, containing all the information in the
possession or control of the Company, any of its Paying Agents (other than the
Trustee) or the Security Registrar, if other than the Trustee, as to the names
and addresses of the Holders of Securities as of such March 1 and September 1,
as the case may be, and (ii) at such other times as the Trustee may request in
writing, within 30 days after receipt by the Company of any such request, a list
of similar form and content as of a date not more than 15 days prior to the time
such list is requested to be furnished; provided, however, that if and so long
as the Trustee is the Security Registrar for Securities of a series, no such
list need be furnished with respect to such series of Securities.
SECTION 6.02. Preservation of Information; Communications to Holders. (i) The
Trustee shall preserve, in as current a form as is reasonably practicable, the
names and addresses of Holders of Securities contained in the most recent list
furnished to the Trustee as provided in Section 6.01 and the names and addresses
of Holders of Securities received by the Trustee in its capacity as the Security
Registrar, if so acting. The Trustee may destroy any list furnished to it as
provided in Section 6.01 upon receipt of a new list so furnished.
(ii) If three or more Holders of Securities of any series (hereinafter referred
to as "applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Security of such series
for a period of at least six months preceding the date of such application, and
such application states that the applicants desire to communicate with other
Holders of Securities of such series or with the Holders of all Securities with
respect to their rights under this Indenture or under such Securities and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election, either:
(a) afford such applicants access to the information preserved at the time by
the Trustee in accordance with Section 6.02(i); or
(b) inform such applicants as to the approximate number of Holders of Securities
of such series or all Securities, as the case may be, whose names and addresses
appear in the information preserved at the time by the Trustee in accordance
with Section 6.02(i), and as to the approximate cost of mailing to such Holders
the form of proxy or other communication, if any, specified in such application.
Page 35
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of a Security of such series or all Holders of Securities,
as the case may be, whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section 6.02(i), a copy
of the form of proxy or other communication which is specified in such request,
with reasonable promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the reasonable expenses
of mailing, unless, within five days after such tender, the Trustee shall mail
to such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interests of the Holders
of Securities of such series or all Securities, as the case may be, or would be
in violation of applicable law. Such written statement shall specify the basis
of such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies of
such material to all such Holders of Securities with reasonable promptness after
the entry of such order and the renewal of such tender; otherwise, the Trustee
shall be relieved of any obligation or duty to such applicants respecting their
application.
(iii) Every Holder of Securities, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee shall be
held accountable by reason of the disclosure of any such information as to the
names and addresses of the Holders of Securities in accordance with Section
6.02(ii), regardless of the source from which such information was derived, and
that the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 6.02(ii).
SECTION 6.03. Reports by Trustee. (i) Within 60 days after May l5 of each year
commencing with the year 1997, the Trustee shall mail to each Holder reports
concerning the Trustee and its action under the Indenture as may be required
pursuant to Section 313(a) of the Trust Indenture Act if and to the extent and
in the manner provided pursuant thereto. The Trustee shall also comply with the
other provisions of Section 313 of the Trust Indenture Act.
(ii) Reports pursuant to this Section shall be transmitted by mail (1) to all
Holders of Registered Securities, as their names and addresses appear in the
Security Register and (2) to such Holders of Bearer Securities as have, within
the two years preceding such transmission, filed their names and addresses with
the Trustee for that purpose, and (3) except in the cases of reports under
Section 313(b)(2) of the Trust Indenture Act, to each Holder of a Security of
any series whose name and address appear in the information preserved at the
time by the Trustee in accordance with Section 6.02(i).
(iii) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each securities exchange upon which any
Securities are listed, and also with the Commission. The Company will notify the
Trustee when any Securities are listed on any securities exchange.
SECTION 6.04. Reports by Company. The Company will:
(i) file with the Trustee, within 15 days after the Company is required to file
the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company
is not required to file information, documents or reports pursuant to either of
said Sections, then it will file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Exchange Act in
respect of a security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations;
(ii) file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(iii) transmit by mail to Holders of Securities, in the manner and to the extent
provided in Section 6.03(ii), within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents and reports required to be
filed by the Company pursuant to paragraphs (i) and (ii) of this Section as may
be required by rules and regulations prescribed from time to time by the
Commission.
Page 36
ARTICLE SEVEN
REMEDIES
SECTION 7.01. Events of Default. "Event of Default", with respect to any series
of Securities, wherever used herein, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body), unless it is either inapplicable to a
particular series or it is specifically deleted or modified in the supplemental
indenture or Board Resolution under which such series of Securities is issued or
in the form of Security for such series:
(i) the entry of a decree or order by a court having jurisdiction in the
premises granting relief in respect of the Company in an involuntary case under
the Federal Bankruptcy Code, adjudging the Company a bankrupt, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under the Federal Bankruptcy Code or
any other applicable Federal or State bankruptcy, insolvency or similar law, or
appointing a receiver, liquidator, custodian, assignee, trustee, sequestrator
(or other similar official) of the Company, or of substantially all of its
properties, or ordering the winding up or liquidation of its affairs under any
such law, and the continuance of any such decree or order unstayed and in effect
for a period of 60 consecutive days; or
(ii) the institution by the Company of proceedings to be adjudicated a bankrupt,
or the consent of the Company to the institution of bankruptcy proceedings
against it, or the filing by the Company of a petition or answer or consent
seeking reorganization or relief under the Federal Bankruptcy Code or any other
applicable Federal or State bankruptcy, insolvency or similar law, or the
consent by the Company to the filing of any such petition or to the appointment
of a receiver, liquidator, custodian, assignee, trustee, sequestrator (or other
similar official) of the Company, or of substantially all of its properties
under any such law; or
(iii) any other Event of Default provided with respect to Securities of that
series.
SECTION 7.02. Acceleration of Maturity; Rescission and Annulment. If an Event of
Default with respect to any series of Securities for which there are Securities
Outstanding occurs and is continuing, then, and in every such case, the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of such series may declare the principal of all the Securities of
such series (or, if the Securities of that series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of that series) to be immediately due and payable, by a notice in writing
to the Company (and to the Trustee if given by Holders), and upon any such
declaration the same shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to Securities
of any series has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in principal amount of the Outstanding
Securities of such series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences, and any Event of
Default giving rise to such declaration shall not be deemed to have occurred,
if:
(i) the Company has paid or deposited with the Trustee a sum sufficient to pay:
(a) all overdue installments of interest on all Securities of such series;
(b) the principal of and premium, if any, on any Securities of such series which
have become due otherwise than by such declaration of acceleration and interest
thereon at the rate or rates prescribed therefor by the terms of the Securities
of such series;
(c) to the extent that payment of such interest is lawful, interest upon overdue
installments of interest at the rate or rates prescribed therefor by the terms
of the Securities of such series; and
(d) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, the Security
Registrar, any Paying Agent, and their agents and counsel and all other amounts
due the Trustee under Section 8.07.
(ii) all other Defaults with respect to Securities of that series, other than
the nonpayment of the principal of Securities of that series which have become
due solely by such declaration of acceleration, have been cured or waived as
provided in Section 7.13.
No such recession shall affect any subsequent default or impair any right
consequent thereon.
SECTION 7.03. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(i) default is made in the payment of any installment of interest on any
Security of any series when such interest becomes due and
Page 37
payable and such default continues for a period of 30 days, or
(ii) default is made in the payment of the principal of or premium, if any, on
any Security of any series at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holder of any such Security or coupon appertaining thereto, if any, the whole
amount then due and payable on any such Security or coupon for principal,
premium, if any, and interest, with interest upon the overdue principal and
premium, if any, and (to the extent that payment of such interest shall be
lawful) upon overdue installments of interest, at the rate or rates prescribed
therefor by the terms of any such Security; and, in addition thereto, such
further amount as shall be sufficient to cover the reasonable costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel and any other amounts due
the Trustee under Section 8.07.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If a Default with respect to any series of Securities occurs and is continuing,
the Trustee may in its discretion proceed to protect and enforce its rights and
the rights of the Holders of Securities of such series by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
SECTION 7.04. Trustee May File Proofs of Claim. In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative to the Company or
any other obligor upon the Securities or the property of the Company or of such
other obligor or their creditors, the Trustee (irrespective of whether the
principal of 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 on the Company for the payment of overdue principal,
premium, if any, or interest) shall be entitled and empowered, by intervention
in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of principal, premium, if
any, and interest owing and unpaid in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel and
any other amounts due the Trustee under Section 8.07) and of the Holders allowed
in such judicial proceeding; and
(ii) to collect and receive any moneys or other property payable or deliverable
on any such claims and to distribute the same, and any receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee, and in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 8.07.
Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Holder of a Security or coupon
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder of a Security or coupon in any such
proceeding.
SECTION 7.05. Trustee May Enforce Claims Without Possession of Securities. All
rights of action and claims under this Indenture or under the Securities of any
series, or coupons (if any) appertaining thereto, may be prosecuted and enforced
by the Trustee without the possession of any of the Securities of such series or
coupons appertaining thereto or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel and
any other amounts due the Trustee under Section 8.07, be for the ratable benefit
of the Holders of the Securities of such series and coupons appertaining thereto
in respect of which such judgment has been recovered.
SECTION 7.06. Application of Money Collected. Any money collected by the Trustee
with respect to a series of Securities pursuant to this Article shall be applied
in the following order, at the date or dates fixed by the Trustee, and, in case
of the distribution of such money on account of principal, premium, if any, or
interest, upon presentation of the Securities of such series or coupons
appertaining thereto, if any, or both, as the case may be, and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 8.07;
Page 38
SECOND: Subject to Article Fourteen, to the payment of the amounts then due and
unpaid upon the Securities of such series and coupons for principal, premium, if
any, and interest, in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on Securities of such series and
coupons, if any, for principal, premium, if any, and interest, respectively. The
Holders of each series of Securities denominated in ECU, any other composite
currency or a Foreign Currency and any matured coupons relating thereto shall be
entitled to receive a ratable portion of the amount determined by the Exchange
Rate Agent by converting the principal amount Outstanding of such series of
Securities and matured but unpaid interest on such series of Securities in the
currency in which such series of Securities is denominated into Dollars at the
Exchange Rate as of the Business Day immediately preceding the date of payment;
and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
SECTION 7.07. Limitation on Suits. No Holder of any Security of any series or
any related coupons shall have any right to institute any proceeding, judicial
or otherwise, with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(i) such Holder has previously given written notice to the Trustee of a
continuing Default with respect to Securities of such series;
(ii) the Holders of not less than a majority in principal amount of the
Outstanding Securities of such series shall have made written request to the
Trustee to institute proceedings in respect of such Default in its own name as
Trustee hereunder; (iii) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(iv) the Trustee for 60 days after its receipt of such notice, request and offer
of indemnity has failed to institute any such proceeding; and
(v) no direction inconsistent with such written request has been given to the
Trustee during such 60-day period by the Holders of a majority in principal
amount of the Outstanding Securities of such series;
it being understood and intended that no one or more Holders of Securities of
such series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holders of Securities of such series or to obtain or to seek
to obtain priority or preference over any other such Holders or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all the Holders of Securities of such series.
The following events shall be "Defaults" with respect to any series of
Securities under this Indenture:
(a) an Event of Default with respect to such series specified in Section 7.01;
or
(b) default in the payment of the principal of or premium, if any, on any
Security of such series at its Maturity; or
(c) default in the payment of any interest upon any Security 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
(d) failure on the part of the Company duly to observe or perform any of the
other covenants or agreements on its part in the Securities of such series or in
this Indenture (other than a covenant or warranty a default in whose performance
or whose breach is elsewhere in this Section specifically dealt with or which
has expressly been included in this Indenture solely for the benefit of series
of Securities other than that series) and continuance of such failure for a
period of 90 days after the date on which written notice of such failure,
requiring the Company to remedy the same and stating that such notice is a
"Notice of Default" hereunder, shall have been given by registered mail to the
Company by the Trustee, or to the Company and the Trustee by the holders of at
least 25% in aggregate principal amount of the Securities of such series at the
time Outstanding; or
(e) any other Default provided with respect to Securities of that Series.
SECTION 7.08. Unconditional Right of Holders To Receive Principal, Premium and
Interest. Notwithstanding any other provision in this Indenture, the Holder of
any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of, premium, if any, and
(subject to Section 3.07) interest on such Security or payment of such coupon on
the respective Stated Maturities expressed in such Security or coupon (or, in
the case of redemption or repayment on the Redemption Date or Repayment Date)
and to institute suit for the enforcement of such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 7.09. Restoration of Rights and Remedies. If the Trustee or any Holder
of a Security or coupon has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any
Page 39
reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case the Company, the Trustee and the Holders shall, subject
to any determination in such proceeding, be restored severally and respectively
to their former positions hereunder, and thereafter all rights and remedies of
the Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 7.10. Rights and Remedies Cumulative. Except as otherwise provided with
respect to the replacement or payment of mutilated, lost, destroyed or stolen
Securities or coupons in the last paragraph of Section 3.06, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 7.11. Delay or Omission Not Waiver. No delay or omission of the Trustee
or of any Holder of any Security or coupon to exercise any right or remedy
accruing upon any Default shall impair any such right or remedy or constitute a
waiver of any such Default or an acquiescence therein. Every right and remedy
given by this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
SECTION 7.12. Control by Holders. The Holders of a majority in principal amount
of the Outstanding Securities of any series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series; provided that
(i) such direction shall not be in conflict with any rule of law or with this
Indenture,
(ii) the Trustee shall not determine that the action so directed would be
unjustly prejudicial to the Holders not taking part in such direction,
(iii) subject to the provisions of Section 8.01, the Trustee shall have the
right to decline to follow any such direction if the Trustee in good faith
shall, by a Responsible Officer or Officers of the Trustee, determine that the
proceeding so directed would involve the Trustee in personal liability, and
(iv) the Trustee may take any other action deemed proper by the Trustee which is
not inconsistent with such direction.
SECTION 7.13. Waiver of Past Defaults. The Holders of a majority in principal
amount of the Outstanding Securities of any series may on behalf of the Holders
of all the Securities of such series waive any past default hereunder and its
consequences, except a default not theretofore cured (i) in the payment of the
principal of, premium, if any, or interest on any Security of such series, or
(ii) in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Default or
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of the Securities of such series under this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
SECTION 7.14. Undertaking for Costs. All parties to this Indenture agree, and
each Holder of any Security by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Company, to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of the Outstanding Securities of any series,
or to any suit instituted by any Holder of Securities or coupons for the
enforcement of the payment of the principal of, premium, if any, or interest on
any Security or payment of any coupon on or after the respective Stated
Maturities expressed in such Security or coupon (or, in the case of redemption
or repayment, on or after the Redemption Date or Repayment Date).
SECTION 7.15. Waiver of Stay or Extension Laws. The Company covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
Page 40
ARTICLE EIGHT
THE TRUSTEE
SECTION 8.01. Certain Duties and Responsibilities. (i) Except during the
continuance of a Default with respect to any series of Securities:
(a) the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture with respect to Securities of such
series, and no implied covenants or obligations shall be read into this
Indenture against the Trustee with respect to such series; and
(b) in the absence of bad faith on its part, the Trustee may conclusively rely
with respect to such series, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificate 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 as to form to the requirements of the Indenture.
(ii) In case a Default with respect to any series of Securities has occurred and
is continuing, the Trustee shall exercise such of the rights and powers vested
in it by this Indenture with respect to such series, 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.
(iii) 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) this Subsection shall not be
construed to limit the effect of Subsection (i) of this Section;
(b) the Trustee shall not be liable for any error or judgment made in good faith
by a Responsible Officer, 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, suffered
or omitted to be taken by it in good faith in accordance with the direction of
the Holders of a majority in principal amount of the Outstanding Securities of
any series relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect to Securities of
such series.
(d) No provision of this Indenture shall require the Trustee to expend or risk
its own funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably assured
to it.
(iv) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 8.02. Notice of Default. Within 90 days after the occurrence of any
Default hereunder with respect to Securities of any series, the Trustee shall
transmit by mail to all Holders of Securities of such series entitled to receive
reports pursuant to Section 6.03(ii) notice of such default hereunder known to
the Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the principal
of, premium, if any, or interest on any Security of such series, or any related
coupons or in the payment of any sinking fund installment with respect to
Securities of 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 and/or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the interests of the
Holders of Securities of such series; and provided further that in the case of
any default of the character specified in Section 7.07(d) with respect to
Securities of such series, no such notice to Holders of Securities of such
series shall be given until at least 90 days after the occurrence thereof. For
the purpose of this Section, the term "default", with respect to Securities of
any series, means any event which is, or after notice or lapse of time, or both,
would become, a Default or an Event of Default with respect to Securities of
such series.
SECTION 8.03. Certain Rights of Trustee. Except as otherwise provided in Section
8.01:
(i) the Trustee may rely and shall be protected in acting or refraining from
acting upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, note or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(ii) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
Page 41
(iii) whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or
omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(iv) the Trustee may consult with counsel and the advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;
(v) the Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Indenture at the request or direction of any of the
Holders pursuant to this Indenture, unless such Holders shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(vi) the Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, security or other
paper or document, but the Trustee, in its discretion, may make further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it shall
be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney and, if so requested to do so by any of the
Holders, at the sole cost and expense of the Holders;
(vii) the Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents or attorneys and
the Trustee shall not be responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care by it hereunder;
(viii) in the event that the Trustee is also acting as Paying Agent,
Authenticating Agent or Security Registrar hereunder, the rights and protections
afforded to the Trustee pursuant to this Article Eight shall also be afforded to
such Paying Agent, Authenticating Agent or Security Registrar;
(ix) the Trustee shall not be charged with knowledge of any Default unless
either (1) a Responsible Officer of the Trustee shall have actual knowledge of
such Default or (2) written notice of such Default shall have been given to the
Trustee by the Company or any Holder; and
(x) the Trustee shall not be liable for any action taken, suffered or omitted by
it in good faith and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture.
SECTION 8.04. Not Responsible for Recitals or Issuance of Securities. The
recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 8.05. May Hold Securities. The Trustee, any Authenticating Agent, any
Paying Agent, the Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Securities
and, subject to Sections 8.08 and 8.13, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
SECTION 8.06. Money Held in Trust. Money held by the Trustee in trust hereunder
need not be segregated from other funds except to the extent required by law.
The Trustee shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed in writing with the Company.
SECTION 8.07. Compensation and Reimbursement. The Company agrees
(i) to pay to the Trustee from time to time reasonable compensation for all
services rendered by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust);
(ii) except as otherwise expressly provided herein, to reimburse the Trustee
upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(iii) to indemnify the 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
trust, including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder. As security for the performance of the obligations of the
Company under this Section the Trustee shall have a lien prior to the
Page 42
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of, premium, if any, or
interest on particular Securities.
Without prejudice to any other rights available to the Trustee under applicable
law, when the Trustee incurs expenses or renders services in connection with an
Event of Default specified in 7.01, the expenses (including the reasonable fees
and expenses of its counsel) and the compensation for the services are intended
to constitute expenses of administration under any applicable bankruptcy,
insolvency or other similar law.
The obligations of the Company set forth in this Section 8.07 and any lien
arising hereunder shall survive the resignation or removal of any Trustee, the
discharge of the Company's obligations pursuant to Article Eleven of this
Indenture and the termination of this Indenture and the repayment of the
Securities whether at the Stated Maturity or otherwise.
SECTION 8.08. Disqualification; Conflicting Interests. If the Trustee has or
shall acquire a conflicting interest within the meaning of Section 310 of the
Trust Indenture Act, the Trustee shall either eliminate such conflicting
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a
conflicting interest with respect to the indentures relating to Existing
Subordinated Indebtedness or to the Securities of any series by virtue of being
Trustee with respect to the Securities of any particular series of Securities
other than that series.
SECTION 8.09. Corporate Trustee Required; Eligibility. There shall at all times
be a Trustee with respect to each series of Securities hereunder which shall be
a corporation organized and doing business under the laws of the United States
of America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $5,000,000, subject to supervision or examination by Federal or
State authority; provided, however, that if Section 310(a) of the Trust
Indenture Act or the rules and regulations of the Commission under the Trust
Indenture Act at any time permit a corporation organized and doing business
under the laws of any other jurisdiction to serve as trustee of an indenture
qualified under the Trust Indenture Act, this Section 8.09 shall be
automatically deemed amended to permit a corporation organized and doing
business under the laws of any such jurisdiction to serve as Trustee hereunder.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
Neither the Company nor any person directly or indirectly controlling,
controlled by or under common control with the Company may serve as Trustee. If
at any time the Trustee with respect to any series of Securities shall cease to
be eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 8.10. Resignation and Removal; Appointment of Successor. (i) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 8.11.
(ii) The Trustee may resign with respect to any series of Securities at any time
by giving written notice thereof to the Company. If an instrument of acceptance
by a successor Trustee shall not have been delivered to the resigning Trustee
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee with respect to Securities of such series.
(iii) The Trustee may be removed with respect to any series of Securities at any
time by Act of the Holders of a majority in principal amount of the Outstanding
Securities of such series, delivered to the Trustee and to the Company.
(iv) If at any time:
(a) the Trustee shall fail to comply with Section 8.08 with respect to any
series of Securities after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security of such series for at least
six months, or
(b) the Trustee shall cease to be eligible under Section 8.09 with respect to
any series of Securities and shall fail to resign after written request therefor
by the Company or by any Holder of Securities of such series, or
(c) 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 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, (1) the Company by a Board Resolution may remove the
Trustee with respect to such series, or (2) subject to Section 7.14, any Holder
who has been a bona fide Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee with respect to such series.
Page 43
(v) If the Trustee shall resign, be removed or become incapable of acting with
respect to any series of Securities, or if a vacancy shall occur in the office
of Trustee with respect to any series of Securities for any cause, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to the Securities of that or those series (it being understood that
any such successor Trustee may be appointed with respect to the Securities of
one or more or all of such series and that at any time there shall be only one
Trustee with respect to the Securities of any particular series) and shall
comply with the applicable requirements of Section 8.11. If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to such series of Securities shall be
appointed by the Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee with respect to such series, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
with respect to such series and to that extent supersede the successor Trustee
appointed by the Company with respect to such series. If no successor Trustee
with respect to such series shall have been so appointed by the Company or the
Holders of Securities of such series and accepted appointment in the manner
hereinafter provided, any Holder who has been A bona fide Holder of a Security
of such series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to such series.
(vi) The Company shall give notice of each resignation and each removal of the
Trustee with respect to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Registered Securities of such series as their names and addresses
appear in the Security Register and, if Securities of such series are issuable
as Bearer Securities, by publishing notice of such event once in an Authorized
Newspaper in each Place of Payment for the Securities of such series located
outside the United States. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its
Principal Corporate Trust Office.
SECTION 8.11. Acceptance of Appointment by Successor. (i) In the case of the
appointment hereunder of a successor Trustee with respect to any series of
Securities, every such successor Trustee so appointed shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective with respect to all or any series as to which it
is resigning as Trustee, and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to all or any such series; but, on
request of the Company or such successor Trustee, such retiring Trustee shall
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of such retiring
Trustee with respect to all or any such series; and shall duly assign, transfer
and deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder with respect to all or any such series, subject
nevertheless to its lien, if any, provided in Section 8.07.
(ii) In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (a) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (b) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (c) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be Trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, subject
nevertheless to its lien, if any, provided for in Section 8.07.
(iii) Upon request of any such successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to in
paragraph (i) or (ii) of this Section, as the case may be.
(iv) No successor Trustee with respect to a series of Securities shall accept
its appointment unless at the time of such acceptance such successor Trustee
shall be qualified and eligible with respect to such series under this Article.
SECTION 8.12. 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
Page 44
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided that such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 8.13. Preferential Collection of Claims against Company. If and when the
Trustee shall be or become a creditor of the Company (or any other obligor upon
the Securities), the Trustee shall be subject to the provisions of Section 311
of the Trust Indenture Act regarding the collection of any claim as a creditor
against the Company (or any such other obligor). A Trustee that has resigned or
been removed shall be subject to and comply with said Section 311 to the extent
required thereby.
SECTION 8.14. Appointment of Authenticating Agents. The Trustee may appoint an
Authenticating Agent or Agents, which may include any Affiliate of the Company,
with respect to one or more series of Securities. Such Authenticating Agent or
Agents at the option of the Trustee shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon original issuance,
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 3.06, and Securities so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Whenever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication or the delivery of Securities to the
Trustee for authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent,
a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent and delivery of Securities to the Authenticating Agent on
behalf of the Trustee. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $5,000,000 and subject to
supervision or examination by Federal or State authority. Notwithstanding the
foregoing, an Authenticating Agent located outside the United States may be
appointed by the Trustee if previously approved in writing by the Company and if
such Authenticating Agent meets the minimum capitalization requirements of this
Section 8.14. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which such Authenticating Agent shall be a party,
or any corporation succeeding to the corporate agency or corporate trust
business of an Authenticating Agent, shall continue to be an Authenticating
Agent, provided such corporation shall be otherwise eligible under this Section,
without the execution or filing of any paper or any further act on the part of
the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof
to the Trustee and to the Company. The Trustee may at any time (and upon request
by the Company shall) terminate the agency of an Authenticating Agent by giving
written notice thereof to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such termination, or in case at
any time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
If an appointment with respect to one or more series is made pursuant to this
Section, the Securities of such series may have endorsed thereon, in addition to
the Trustee's certificate of authentication, an alternate certificate of
authentication in the following form:
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, AS
Trustee,
by____________________________
As Authenticating Agent
by
AUTHORIZED OFFICER
Page 45
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders. Without the
consent of any Holder of any Securities or coupons, the Company, when authorized
by a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:
(i) to evidence the succession of another corporation or Person to the Company,
and the assumption by any such successor of the covenants of the Company herein
and in the Securities contained; or
(ii) to evidence and provide for the acceptance of appointment by another
corporation as a successor Trustee hereunder with respect to one or more series
of Securities and to add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to Section 8.11; or
(iii) to add to the covenants of the Company, for the benefit of the Holders of
Securities of all or any series of Securities or coupons (and if such covenants
are to be for the benefit of less than all series of Securities or coupons,
stating that such covenants are expressly being included solely for the benefit
of such series), or to surrender any right or power herein conferred upon the
Company; or
(iv) to cure any ambiguity, to correct or supplement any provision herein which
may be inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under the Indenture;
provided that such action shall not adversely affect the interests of the
Holders of Securities of any series or any related coupons in any material
respect, or
(v) to add any additional Defaults or Events of Default with respect to all or
any series of the Securities (and, if such Default or Event of Default is
applicable to less than all series of Securities, specifying the series to which
such Default or Event of Default is applicable); or
(vi) to add to, change or eliminate any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to change or
eliminate any restrictions on the payment of principal of (or premium, if any)
or any interest on Bearer Securities, to permit Bearer Securities to be issued
in exchange for Registered Securities, to permit Bearer Securities to be issued
in exchange for Bearer Securities of other authorized denominations or to permit
or facilitate the issuance of Securities in uncertificated form; provided any
such action shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material respect; or
(vii) to add to, change or eliminate any of the provisions of this Indenture,
provided that any such addition, change or elimination (a) shall become
effective only when there is no Security Outstanding of any series created prior
to the execution of such supplemental indenture which is adversely affected by
such change in or elimination of such provision or (b) shall not apply to any
Securities Outstanding; or
(viii) to establish the form or terms of Securities of any series as permitted
by Sections 2.02 and 3.01, or
(ix) to add to or change any provisions of this Indenture to such extent as
shall be necessary to permit or facilitate the issuance of Securities
convertible into other securities; or
(x) to evidence any changes to Section 8.09 as permitted by the terms thereof;
or
(xi) to add to or change or eliminate any provision of this Indenture as shall
be necessary or desirable in accordance with any amendments to the Trust
Indenture Act, provided such action shall not adversely affect the interest of
Holders of Securities of any series or any appurtenant coupons in any material
respect.
SECTION 9.02. Supplemental Indentures With Consent of Holders. With the consent
of the Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities of all series affected by such supplemental indenture or
indentures (acting as one class), by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the rights
of the Holders of Securities of each such series and any related coupons under
this Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security affected thereby;
(i) change the Maturity of the principal of, or the Stated Maturity of any
installment of interest (or premium, if any) on, any Security, or reduce the
principal amount thereof or any premium thereon or the rate of interest thereon,
or change the obligation of the Company to pay additional amounts pursuant to
Section 5.04 (except as contemplated by Section 10.01(i) and permitted by
Section 9.01), or
Page 46
reduce the amount of the principal of an Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 7.02, or change the method of calculating interest
thereon or the coin or currency in which any Security (or premium, if any,
thereon) or the interest thereon is payable, or reduce the minimum rate of
interest thereon, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof (or, in the case of
redemption or repayment, on or after the Redemption Date or Repayment Date);
(ii) reduce the percentage in principal amount of the Outstanding Securities of
any series, the consent of whose Holders is required for any such supplemental
indenture or the consent of whose Holders is required for any waiver of certain
defaults hereunder and their consequences provided for in this Indenture or
reduce the requirements of Section 16.04 for a quorum;
(iii) change any obligation of the Company to maintain an office or agency in
the places and for the purposes specified in Section 5.02; or
(iv) modify any of the provisions of this Section or Section 7.13, except to
increase any such percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to approve
the particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures. In executing, or accepting
the additional trusts created by, any supplemental indenture permitted by this
Article or the modifications thereby of the trusts created by this Indenture,
the Trustee shall be entitled to receive, and (subject to Section 8.01) shall be
fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by and
complies with this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, liabilities, duties or immunities under this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 9.05. Conformity with Trust Indenture Act. Every supplemental indenture
executed pursuant to this Article shall conform to the requirements of the TIA
as then in effect.
SECTION 9.06. Reference in Securities to Supplemental Indentures. Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall, if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities so
modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities.
SECTION 9.07. Subordination Unimpaired. No supplemental indenture executed
pursuant to this Article shall directly or indirectly modify the provisions of
Article Fourteen in any manner which might alter the subordination of the
Securities.
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 10.01. Company May Consolidate, etc., Only on Certain Terms. The Company
shall not consolidate with or merge into any other corporation or convey or
transfer its properties and assets substantially as an entirety to any Person,
unless
(i) the Person formed by such consolidation or into which the Company is merged
or the Person which acquires by conveyance or transfer the properties and assets
of the Company substantially as an entirety shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of,
premium, if any, and interest (including all additional amounts, if any, payable
pursuant to Section 5.04) on all the Securities and the performance of every
covenant of this Indenture on the part of the Company to be performed or
observed;
(ii) immediately after giving effect to such transaction, no Default, and no
event which, after notice or lapse of time, or both, would
Page 47
become a Default, shall have happened and be continuing; and
(iii) the Company has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel each stating that such consolidation, merger, conveyance or
transfer and such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have been
complied with.
SECTION 10.02. Successor Corporation Substituted. Upon any consolidation or
merger, or any conveyance or transfer of the properties and assets of the
Company substantially as an entirety in accordance with Section 10.01, the
successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein. In the event of any such conveyance or transfer, the
Company as the predecessor corporation shall be relieved of all obligations and
covenants under this Indenture and may be dissolved, wound up and liquidated at
any time thereafter.
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE
SECTION 11.01. Satisfaction and Discharge of Indenture. This Indenture shall
cease to be of further effect (except as to any surviving rights of registration
of transfer or exchange of Securities herein expressly provided for and rights
to receive payments thereon and any right to receive additional amounts, as
provided in Section 5.04), and the Trustee, on receipt of a Company Request and
at the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(i) either
(a) all Securities theretofore authenticated and delivered (other than (1)
coupons appertaining to Bearer Securities surrendered for exchange for
Registered Securities and maturing after such exchange, whose surrender is not
required or has not been waived as provided in Section 3.05, (2) coupons
appertaining to Bearer Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived as provided in Section
4.06, (3) coupons appertaining to Bearer Securities surrendered for repayment
pursuant to Section 15.03 and maturing after the Repayment Date, whose surrender
has been waived as provided in Section 15.03, (4) Securities and coupons which
have been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.06, and (5) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust, as
provided in Section 5.03) have been delivered to the Trustee for cancelation; or
(b) all such Securities not theretofore delivered to the Trustee for cancelation
(1) have become due and payable, or
(2) will become due and payable at their Maturity within one year, or
(3) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (b) (1), (2) or (3) above, has deposited or
caused to be deposited with the Trustee, as trust funds in trust for the
purpose, an amount (said amount to be immediately due and payable to the
Holders) sufficient to pay and discharge the entire indebtedness on such
Securities and coupons not theretofore delivered to the Trustee for cancelation,
for principal, premium, if any, and interest to the date of such deposit (in the
case of Securities which have become due and payable), or to the Maturity or
Redemption Date, as the case may be;
(ii) the Company has paid or caused to be paid all other sums payable hereunder
by the Company; and
(iii) the Company has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel each stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 8.07 and, if money shall
have been deposited with the Trustee pursuant to subclause (b) of clause (i) of
this Section, the obligations of the Trustee under Section 11.02 and the last
paragraph of Section 5.03 shall survive. The Trustee may give notice at the
Company's expense to the Holders of Securities Outstanding of the immediate
availability of the amount referred to in clause (i) of this Section 11.01.
Funds held pursuant to this Section shall not be subject to the provisions of
Article Fourteen.
Page 48
SECTION 11.02. Application of Trust Money. Subject to the provisions of the last
paragraph of Section 5.03, all money deposited with the Trustee pursuant to
Section 11.01 shall be held in trust and applied by it, in accordance with the
provisions of the Securities, the coupons, if any, and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent), as the Trustee may determine, to the Persons
entitled thereto, of the principal, premium, if any, and interest for whose
payment such money has been deposited with the Trustee; but such money need not
be segregated from other funds except to the extent required by law.
SECTION 11.03. Reinstatement. If the Trustee or any Paying Agent is unable to
apply any money in accordance with Section 11.02 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture and the Securities shall be revived
and reinstated as though no deposit had occurred pursuant to Section 11.01 until
such time as the Trustee or any Paying Agent is permitted to apply all such
money in accordance with Section 11.02.
ARTICLE TWELVE
Immunity of Incorporators, Stockholders,
Officers and Directors
SECTION 12.01. Exemption from Individual Liability. No recourse under or upon
any obligation, covenant or agreement of this Indenture, or of any Security or
coupon, or for any claim based thereon or otherwise in respect thereof, shall be
had against any incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or of any successor corporation, either
directly or through the Company, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise;
it being expressly understood that this Indenture and the obligations issued
hereunder are solely corporate obligations of the Company, and that no such
personal liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors, as such, of the Company or
of any successor corporation, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or coupons or implied therefrom; and that any and all such personal liability,
either at common law or in equity or by constitution or statute, of, and any and
all such rights and claims against, every such incorporator, stockholder,
officer or director, as such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or coupons or implied
therefrom, are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issuance of the
Securities.
ARTICLE THIRTEEN
SINKING FUNDS
SECTION 13.01. Applicability of Article. The provisions of this Article shall be
applicable to any sinking fund for the retirement of Securities of a series
except as otherwise specified as contemplated by Section 3.01 for Securities of
such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 13.02. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of Securities of such
series.
SECTION 13.02. Satisfaction of Sinking Fund Payments with Securities. The
Company (i) may deliver Outstanding Securities of a series (other than any
previously called for redemption), together in the case of any Bearer Securities
of such series with all unmatured coupons appertaining thereto and (ii) may
apply as a credit Securities of a series which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 13.03. Redemption of Securities for Sinking Fund. Not less than 60 days
prior to each sinking fund payment date for any series of Securities, the
Company will deliver to the Trustee and the Security Registrar an Officers'
Certificate specifying (i) the amount of the next ensuing sinking fund payment
for that series pursuant to the terms of that series, (ii) the portion thereof,
if any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities of that
series pursuant to Section 13.02, and (iii) that none of such Securities has
theretofore been so credited and stating the basis for such credit, and will
also deliver to the Trustee any Securities to be so delivered. Not less than 30
days before each sinking
Page 49
fund payment date the Security Registrar shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section
4.03 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section 4.04. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 4.06 and 4.07 and shall be
subject to Section 4.08.
ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
SECTION 14.01. Agreement To Subordinate. The Company, for itself, its successors
and assigns, covenants and agrees, and each Holder of a Security by his
acceptance thereof, likewise covenants and agrees, that the payment of the
principal and premium, if any, and interest on each and all of the Securities is
hereby expressly subordinated, to the extent and in the manner hereinafter set
forth, in right of payment to the prior payment in full of all Senior
Indebtedness and, subject to the provisions of Section 14.09, General
Obligations of the Company.
SECTION 14.02. Distribution on Dissolution, Liquidation and Reorganization;
Subrogation of Securities. Upon any distribution of assets of the Company upon
any dissolution, winding up, liquidation or reorganization of the Company,
whether in bankruptcy, insolvency, reorganization or receivership proceedings or
upon an assignment for the benefit of creditors or any other marshalling of the
assets and liabilities of the Company or otherwise (subject to the power of a
court of competent jurisdiction to make other equitable provision reflecting the
rights conferred in this Indenture upon the Senior Indebtedness and the holders
thereof with respect to the Securities and the Holders thereof (and, upon the
General Obligations and the creditors in respect thereof with respect to the
Securities and the Holders thereof) by a lawful plan of reorganization under
applicable bankruptcy law);
(i) the holders of all Senior Indebtedness shall first be entitled to receive
payment in full in accordance with the terms of such Senior Indebtedness of the
principal thereof, premium, if any, and the interest due thereon (including
interest accruing subsequent to the commencement of any proceeding for the
bankruptcy or reorganization of the Company under any applicable bankruptcy,
insolvency, or similar law now or hereafter in effect) before the Holders of the
Securities are entitled to receive any payment upon the principal of or premium,
if any, or interest on indebtedness evidenced by the Securities;
(ii) any payment or distribution of assets of the Company of any kind or
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 Fourteen, including any such payment or distribution which may be
payable or deliverable by reason of the payment of any other indebtedness of the
Company being subordinated to the payment of the Securities, shall be paid by
the liquidating trustee or agent or other person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee
or otherwise, directly to the holders of Senior Indebtedness or their
representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Senior Indebtedness
may have been issued, in accordance with the priorities then existing among
holders of Senior Indebtedness for payment of the aggregate amounts remaining
unpaid on account of the principal of and premium, if any, and interest
(including interest accruing subsequent to the commencement of any proceeding
for the bankruptcy or reorganization of the Company under any applicable
bankruptcy, insolvency or similar law now or hereafter in effect) on the Senior
Indebtedness held or represented by each, to the extent necessary to make
payment in full of all Senior Indebtedness remaining unpaid, after giving effect
to any concurrent payment or distribution to the holders of such Senior
Indebtedness; it being understood that if the Holders of Securities shall fail
to file a proper claim in the form required by any proceeding referred to in
this subparagraph (ii) prior to 30 days before the expiration of the time to
file such claim or claims, then the holders of Senior Indebtedness are hereby
authorized to file an appropriate claim or claims for and on behalf of the
Holders of Securities in the form required in any such proceeding (as are the
creditors in respect of General Obligations in the event Section 14.09 is
applicable); and
(iii) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, including any such payment or distribution which may be
payable or deliverable by reason of the payment of any other indebtedness of the
Company being subordinate to the payment of the Securities, shall be received by
the Trustee or Holders of the Securities before all Senior Indebtedness is paid
in full, such payment or distribution shall be held in trust for the benefit of
and shall be paid over to the holders of such Senior Indebtedness or their
representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Senior Indebtedness
may have been issued, ratably as aforesaid, for application to the payment of
all Senior Indebtedness remaining unpaid until all such Senior Indebtedness
shall have been paid in full, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders of the
Securities shall be subrogated (equally and ratably with the holders of all
indebtedness of the Company which by its express terms is subordinated to
indebtedness of the Company to substantially the same extent as the Securities
are subordinated and is entitled to like rights of subrogation) to the rights of
the holders of Senior Indebtedness to receive payments or distributions of cash,
property or securities of the Company applicable to the Senior Indebtedness
until the principal of and premium, if any, and interest on the Securities shall
be paid in full and no such payments or distributions to holders of such Senior
Indebtedness to which the Holders of the Securities would be entitled except for
the provisions
Page 50
hereof of cash, property or securities otherwise distributable to the Senior
Indebtedness shall, as between the Company, its creditors, other than the
holders of Senior Indebtedness and the Holders of the Securities, be deemed to
be a payment by the Company to or on account of the Securities. It is understood
that the provisions of this Article Fourteen 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 Senior Indebtedness (and, in the case of Section
14.09, the Holders of the Securities, on the one hand, and creditors in respect
of General Obligations) on the other hand. Nothing contained in this Article
Fourteen or elsewhere in this Indenture or in the Securities is intended to or
shall impair, as between the Company, its creditors, other than the holders of
Senior Indebtedness, and the Holders of the Securities, the obligation of the
Company, which is unconditional and absolute (and which, subject to the rights
under this Article Fourteen of the holders of the Senior Indebtedness and the
rights under Section 14.09 of creditors in respect of General Obligations, is
intended to rank equally with all other general obligations of the Company), to
pay to the Holders of the Securities the principal of, premium, if any, and
interest on the Securities as and when the same shall become due and payable in
accordance with their terms or to affect the relative rights of the Holders of
the Securities and creditors of the Company, other than the holders of the
Senior Indebtedness and creditors in respect of General Obligations, nor shall
anything herein or in the Securities 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
Fourteen of the holders of Senior Indebtedness and under Section 14.09 of
creditors in respect of General Obligations in respect of cash, property or
securities of the Company received upon the exercise of any such remedy. Upon
any payment or distribution of assets of the Company referred to in this Article
Fourteen, the Trustee, subject to the provisions of Section 8.01, and the
Holders of the Securities shall be entitled to rely upon any order or decree of
a court of competent jurisdiction in which such dissolution, winding up,
liquidation or reorganization proceedings are pending or upon a certificate of
the liquidating trustee or agent or other person making any distribution 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 Company and the creditors in respect
of General Obligations, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Article Fourteen. In the absence of any such liquidating trustee, agent or
other person, the Trustee shall be entitled to rely upon a written notice by a
Person representing himself to be a holder of Senior Indebtedness (or a trustee
or representative on behalf of such holder) or a creditor in respect of General
Obligations as evidence that such Person is a holder of Senior Indebtedness (or
is such a trustee or representative) or a creditor in respect of General
Obligations, as the case may be. 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 or a creditor in respect of General
Obligations, to participate in any payment or distribution pursuant to this
Section or Section 14.09, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness or General Obligations held by such Person, as to the extent
to which such Person is entitled to participation in such payment or
distribution, and as to other facts pertinent to the rights of such Person under
this Section or Section 14.09, 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.
The obligations of the Company in respect of the Securities shall rank on a
parity with the Existing Subordinated Indebtedness and any other obligations of
the Company ranking on a parity with the Securities.
With respect to the holders of Senior Indebtedness or creditors in respect of
General Obligations, the Trustee undertakes to perform or to observe only such
of its covenants and obligations as are specifically set forth in this Article,
and no implied covenants or obligations with respect to the holders of Senior
Indebtedness or creditors in respect of General Obligations shall be read into
this Indenture against the Trustee. The Trustee, however, shall not be deemed to
owe any fiduciary duty to the holders of Senior Indebtedness or creditors in
respect of General Obligations, and shall not be liable to any such holders or
creditors if it shall mistakenly pay over or distribute to or on behalf of
Holders of Securities or the Company moneys or assets to which any holders of
Senior Indebtedness or creditors in respect of General Obligations shall be
entitled by virtue of this Article Fourteen.
SECTION 14.03. Payments on Securities Prohibited During Event of Default under
Senior Indebtedness. In the event and during the continuation of any default in
the payment of principal of, or premium, if any, or interest on, any Senior
Indebtedness beyond any applicable period of grace, or in the event that any
event of default with respect to any Senior Indebtedness shall have occurred and
be continuing, or would occur as a result of the payment referred to
hereinafter, permitting the holders of such Senior Indebtedness (or a trustee on
behalf of the holders thereof) to accelerate the maturity thereof, then, unless
and until such default or event of default shall have been cured or waived or
shall have ceased to exist, no payment of principal of, or premium or interest
on the Securities, or in respect of any redemption, retirement, purchase or
other acquisition of any of the Securities, shall be made by the Company.
SECTION 14.04. Payments on Securities Permitted. Nothing contained in this
Indenture or in any of the Securities shall (i) impair, as between the Company
and Holders of Securities, the obligation of the Company to make, or prevent the
Company from making, at any time except as provided in Sections 14.02, 14.03,
14.08 and 14.09, payments of principal of or premium, if any, or interest
(including interest accruing subsequent to the commencement of any proceeding
for the bankruptcy or reorganization of the Company under any applicable
bankruptcy, insolvency or similar law now or hereafter in effect) on the
Securities, as and when the same shall become due and payable in accordance with
the terms of the Securities, (ii) affect the relative rights of the Holders of
the Securities and creditors of the Company other than the holders of the Senior
Indebtedness of the Company and the creditors in respect of General Obligations,
(iii) prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default thereunder, subject
to the rights, if any, under Article Fourteen of the holders of Senior
Indebtedness and the creditors in
Page 51
respect of General Obligations in respect of cash, property or securities of the
Company received upon the exercise of such remedy, or (iv) prevent the
application by the Trustee or any Paying Agent of any moneys deposited with it
hereunder to the payment of or on account of the principal of or premium, if
any, or interest on the Securities or prevent the receipt by the Trustee or any
Paying Agent of such moneys, if, prior to the second Business Day prior to such
deposit, the Trustee or such Paying Agent did not have written notice of any
event prohibiting the making of such deposit by the Company.
SECTION 14.05. Authorization of Holders to Trustee To Effect Subordination. 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 as provided in this Article Fourteen and appoints
the Trustee his attorney-in-fact for any and all such purposes.
SECTION 14.06. Notice to Trustee. Notwithstanding the provisions of this Article
or any other provisions of this Indenture, but subject to Section 14.04 hereof,
neither the Trustee nor any Paying Agent shall be charged with knowledge of the
existence of any Senior Indebtedness or General Obligations or of any event
which would prohibit the making of any payment of moneys to or by the Trustee or
such Paying Agent, unless and until the Trustee or such Paying Agent shall have
received written notice thereof from the Company or from the holder of any
Senior Indebtedness or from the representative of any such holder or from any
creditor in respect of General Obligations.
SECTION 14.07. Right of Trustee To Hold Senior Indebtedness or General
Obligations. The Trustee shall be entitled to all of the rights set forth in
this Article in respect of any Senior Indebtedness or General Obligation at any
time held by it in its individual capacity to the same extent as any other
holder of such Senior Indebtedness or creditor in respect of such General
Obligation and nothing in this Indenture shall be construed to deprive the
Trustee of any of its rights as such holder or creditor.
Nothing in this Article shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 8.07.
SECTION 14.08. Article Fourteen Not To Prevent Defaults or Events of Default.
The failure to make a payment pursuant to the Securities by reason of any
provision in this Article shall not be construed as preventing the occurrence of
a Default or an Event of Default.
SECTION 14.09. Securities To Rank Pari Passu with Existing Subordinated
Indebtedness; Payment of Proceeds in Certain Cases. (i) Subject to the
provisions of this Section and to any provisions established or determined with
respect to Securities of any series pursuant to Section 3.01, the Securities
shall rank pari passu in right of payment with the Existing Subordinated
Indebtedness.
(ii) Upon the occurrence of any of the events specified in the first paragraph
of Section 14.02, the provisions of that Section and the corresponding
provisions of each indenture or other instrument or document establishing or
governing the terms of any Existing Subordinated Indebtedness shall be given
effect on a pro rata basis to determine the amount of cash, property or
securities which may be payable or deliverable as between the holders of Senior
Indebtedness, on the one hand, and the Holders of the Securities and holders of
Existing Subordinated Indebtedness, on the other hand.
(iii) If, after giving effect to the provisions of Section 14.02, and the
respective corresponding provisions of each indenture or other instrument or
document establishing or governing the terms of any Existing Subordinated
Indebtedness on such pro rata basis, any amount of cash, property or securities
shall be available for payment or distribution in respect of the Securities
("Excess Proceeds"), and any creditors in respect of General Obligations shall
not have received payment in full of all amounts due or to become due on or in
respect of such General Obligations (and provision shall not have been made for
such payment in money or money's worth), then such Excess Proceeds shall first
be applied (ratably with any amount of cash, property or securities available
for payment or distribution in respect of any other indebtedness of the Company
that by its express terms provides for the payment over of amounts corresponding
to Excess Proceeds to creditors in respect of General Obligations) to pay or
provide for the payment of the General Obligations remaining unpaid, to the
extent necessary to pay all General Obligations in full, after giving effect to
any concurrent payment or distribution to or for creditors in respect of General
Obligations. Any Excess Proceeds remaining after payment (or provision for
payment) in full of all General Obligations shall be available for payment or
distribution in respect of the Securities.
(iv) In the event that, notwithstanding the foregoing provisions of subsection
(iii) of this Section, the Trustee or Holder of any Security shall, in the
circumstances contemplated by such subsection, have received any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, before all General Obligations are paid in full or
payment thereof duly provided for, and if such fact shall, at or prior to the
time of such payment or distribution have been made known to the Trustee or, as
the case may be, such Holder, then and in such event, subject to any obligation
that the Trustee or such Holder may have pursuant to Section 14.02, such payment
or distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
Person making payment or distribution of assets of the Company for payment in
accordance with subsection (iii).
(v) Subject to the payment in full of all General Obligations, the Holder of the
Securities shall be subrogated (equally and ratably with the holders of all
indebtedness of the Company that by its express terms provides for the payment
over of amounts corresponding to Excess Proceeds to creditors in respect of
General Obligations and is entitled to like rights of subrogation) to the rights
of the creditors
Page 52
in respect of General Obligations to receive payments or distributions of cash,
property or securities applicable to the General Obligations until the principal
of and interest on the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to creditors in respect of General
Obligations of any cash, property or securities to which Holders of the
Securities or the Trustee would be entitled except for the provisions of this
Section, and no payments over pursuant to the provisions of this Section to
creditors in respect of General Obligations by Holders of Securities or the
Trustee, shall, as among the Company, its creditors (other than creditors in
respect of General Obligations) and the Holders of Securities be deemed to be a
payment or distribution by the Company to or on account of the Securities.
(vi) The provisions of subsections (iii), (iv) and (v) of this Section 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 creditors in respect of
General Obligations, on the other hand, after giving effect to the rights of the
holders of Senior Indebtedness, as provided in this Article. Nothing contained
in subsections (iii), (iv) and (v) of this Section is intended to or shall
affect the relative rights against the Company of the Holders of the Securities
and (a) the holders of Senior Indebtedness, (b) the holders of Existing
Subordinated Indebtedness or (c) other creditors of the Company other than
creditors in respect of General Obligations.
ARTICLE FIFTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 15.01. Applicability of Article. Securities of any series which are
repayable at the option of the Holders thereof before their Stated Maturity
shall be repaid in accordance with their terms and (except as otherwise
specified pursuant to Section 3.01 for Securities of such series) in accordance
with this Article.
SECTION 15.02. Repayment of Securities. Each Security which is subject to
repayment in whole or in part at the option of the Holder thereof on a Repayment
Date shall be repaid at the applicable Repayment Price together with interest
accrued to such Repayment Date as specified pursuant to Section 3.01.
SECTION 15.03. Exercise of Option; Notice. Each Holder desiring to exercise such
Holder's option for repayment shall, as conditions to such repayment, surrender
the Security to be repaid in whole or in part together with written notice of
the exercise of such option at any office or agency of the Company in a Place of
Payment, not less than 30 nor more than 45 days prior to the Repayment Date;
provided, however, that surrender of Bearer Securities together with written
notice of exercise of such option shall be made at an office or agency located
outside the United States except as otherwise provided in Section 5.02. Such
notice, which shall be irrevocable, shall specify the principal amount of such
Security to be repaid, which shall be equal to the minimum authorized
denomination for such Security or an integral multiple thereof, and shall
identify the Security to be repaid and, in the case of a partial repayment of
the Security, shall specify the denomination or denominations of the Security or
Securities of the same series to be issued to the Holder for the portion of the
principal of the Security surrendered which is not to be repaid. If any Bearer
Security surrendered for repayment shall not be accompanied by all unmatured
coupons and all matured coupons in default, such Bearer Security may be paid
after deducting from the Repayment Price an amount equal to the face amount of
all such missing coupons, or the surrender of such missing coupon or coupons may
be waived by the Company and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Bearer Security shall surrender
to the Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made from the Repayment Price, such Holder shall be
entitled to receive the amount so deducted without interest thereon; provided,
however, that interest represented by coupons shall be payable only at an office
or agency located outside the United States except as otherwise provided in
Section 5.02.
The Company shall execute and the Trustee shall authenticate and deliver without
service charge to the Holder of any Registered Security so surrendered a new
Registered Security or Securities of the same series and tenor of any authorized
denomination specified in the foregoing notice, in an aggregate principal amount
equal to any portion of the principal of the Registered Security so surrendered
which is not to be repaid.
The Company shall execute and the Trustee shall authenticate and deliver without
service charge to the Holder of any Bearer Security so surrendered a new
Registered Security or Securities or new Bearer Security or Securities (and all
appurtenant unmatured coupons and matured coupons in default) or any combination
thereof of the same series and tenor of any authorized denomination or
denominations specified in the foregoing notice, in an aggregate principal
amount equal to any portion of the principal of the Security so surrendered
which is not to be repaid; provided, however, that the issuance of a Registered
Security therefor shall be subject to applicable laws and regulations, including
provisions of the United States federal income tax laws and regulations in
effect at the time of the exchange; neither the Company, the Trustee nor the
Security Registrar shall issue Registered Securities for Bearer Securities if it
has received an Opinion of Counsel that as a result of such issuance the Company
would suffer adverse consequences under the United States federal income tax
laws then in effect and the Company has delivered to the Trustee a Company Order
directing the Trustee not to make such issuances thereafter unless and until the
Trustee receives a subsequent Company Order to the contrary. The Company shall
deliver copies of such Company Order to the Security Registrar.
Page 53
For all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the repayment of Securities shall relate, in the case of
any Security repaid or to be repaid only in part, to the portion of the
principal of such Security which has been or is to be repaid.
SECTION 15.04. Election of Repayment by Remarketing Entities. The Company may
elect, with respect to Securities of any series which are repayable at the
option of the Holders thereof before their Stated Maturity, at any time prior to
any Repayment Date to designate one or more Remarketing Entities to purchase, at
a price equal to the Repayment Price, Securities of such series from the Holders
thereof who give notice and surrender their Securities in accordance with
Section 15.03.
SECTION 15.05. Securities Payable on the Repayment Date. Notice of exercise of
the option of repayment having been given and the Securities so to be repaid
having been surrendered as aforesaid, such Securities shall, unless purchased in
accordance with Section 15.04, on the Repayment Date become due and payable at
the price therein specified and from and after the Repayment Date such
Securities shall cease to bear interest and shall be paid on the Repayment Date,
and the coupons for such interest appertaining to Bearer Securities so to be
repaid, except to the extent provided above, shall be void, unless the Company
shall default in the payment of such price, in which case the Company shall
continue to be obligated for the principal amount of such Securities and shall
be obligated to pay interest on such principal amount at the rate prescribed
therefor by such Securities from time to time until payment in full of such
principal amount.
ARTICLE SIXTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 16.01. Purposes for Which Meetings May Be Called. If Securities of a
series are issuable in whole or in part as Bearer Securities, a meeting of
Holders of Securities of such series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other Act provided by this
Indenture to be made, given or taken by Holders of Securities of such series.
SECTION 16.02. Call, Notice and Place of Meetings. (i) The Trustee may at any
time call a meeting of Holders of Securities of any series issuable in whole or
in part as Bearer Securities for any purpose specified in Section 16.01, to be
held at such time and at such place in the City of Columbus, Ohio, the Borough
of Manhattan, The City of New York, or in London as the Trustee shall determine.
Notice of every meeting of Holders of Securities of any series, setting forth
the time and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be given, in the manner provided in Section
1.06, not less than 21 nor more than 180 days prior to the date fixed for the
meeting.
(ii) In case at any time the Company, pursuant to a Board Resolution, or the
Holders of at least 10% in principal amount of the Outstanding Securities of any
such series shall have requested the Trustee to call a meeting of the Holders of
Securities of such series for any purpose specified in Section 16.01, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the City
of Columbus, Ohio, the Borough of Manhattan, The City of New York, or in London
for such meeting and may call such meeting for such purposes by giving notice
thereof as provided in subsection (i) of this Section.
SECTION 16.03. Persons Entitled To Vote at Meetings. To be entitled to vote at
any meeting of Holders of Securities of any series, a Person shall be (1) a
Holder of one or more Outstanding Securities of such series, or (2) a Person
appointed by an instrument in writing as proxy for a Holder or Holders of one or
more Outstanding Securities of such series by such Holder or Holders. The only
Persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 16.04. Quorum, Action. The Persons entitled to vote a majority in
principal amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such series; provided, however,
that if any action is to be taken at such meeting with respect to a consent or
waiver which this Indenture expressly provides may be given by the Holders of a
greater percentage in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote such greater percentage in principal amount
of the Outstanding Securities of such series shall constitute a quorum. In the
absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of Securities
of such series, be dissolved. In the absence of a quorum in any other case the
meeting may be adjourned for a period of not less than 10 days as determined by
the chairperson of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may be
further adjourned for a period of not less than 10 days as determined by the
chairperson of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided in
Section 16.02(i), except that such notice need be given only once not less than
five days prior to the date
Page 54
on which the meeting is scheduled to be reconvened. Notice of the reconvening of
an adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the provisos to Section 9.02, any resolution presented to a
meeting or adjourned meeting duly reconvened at which a quorum is present as
aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities of the series;
provided, however, that, except as limited by the provisos to Section 9.02, any
resolution with respect to any consent or waiver which this Indenture expressly
provides may be given by the Holders of a greater percentage in principal amount
of the Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as aforesaid
only by the affirmative vote of the Holders of such greater percentage in
principal amount of the Outstanding Securities of that series; and provided
further that, except as limited by the provisos to Section 9.02, any resolution
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other Act which this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage, which is less than a majority
in principal amount of the Outstanding Securities of a series may be adopted at
a meeting or an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid by the affirmative vote of the Holders of such specified
percentage in principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of Securities
of any series duly held in accordance with this Section shall be binding on all
the Holders of Securities of such series and the related coupons, whether or not
present or represented at the meeting.
SECTION 16.05. Determination of Voting Rights; Conduct and Adjournment of
Meetings. (a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of such series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section
1.04 and the appointment of any proxy shall be proved in the manner specified in
Section 1.04 or, in the case of Bearer Securities, by having the signature of
the person executing the proxy witnessed or guaranteed by any trust company,
bank or banker authorized by Section 1.04 to certify to the holding of Bearer
Securities. Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine without the
proof specified in Section 1.04 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairperson of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 16.02(ii), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairperson. A
permanent chairperson and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall be
entitled to one vote for each $1,000 principal amount (or the equivalent in ECU,
any other composite currency or a Foreign Currency) of Securities of such series
held or represented by him; provided, however, that no vote shall be cast or
counted at any meeting in respect of any Security challenged as not Outstanding
and ruled by the chairperson of the meeting not to be Outstanding. The
chairperson of the meeting shall have no right to vote, except as a Holder of a
Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called pursuant to
Section 16.02 at which a quorum is present may be adjourned from time to time by
Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting; and the meeting may be
held as so adjourned without further notice.
SECTION 16.06. Counting Votes and Recording Action of Meetings. The vote upon
any resolution submitted to any meeting of Holders of Securities of any series
shall be by written ballots on which shall be subscribed the signatures of the
Holders of Securities of such series or of their representatives by proxy and
the principal amounts and serial numbers of the Outstanding Securities of such
series held or represented by them. The permanent chairperson of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in triplicate of all
votes cast at the meeting. A record, at least in triplicate, of the proceedings
of each meeting of Holders of Securities of any series shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was given as
provided in Section 16.02 and, if applicable, Section 16.04. Each copy shall be
signed and verified by the affidavits of the permanent chairperson and secretary
of the meeting and one such copy shall be delivered to the Company, and another
to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
Page 55
ARTICLE SEVENTEEN
MISCELLANEOUS
SECTION 17.01. 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.
The Chase Manhattan Bank hereby accepts the trusts in this Indenture declared
and provided, upon the terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
BANC ONE CORPORATION,
by________________________________
Attest:
________________________ [CORPORATE SEAL]
THE CHASE MANHATTAN BANK,
Trustee,
by__________________________________
Attest:
________________________ [CORPORATE SEAL]
STATE OF OHIO, ) ) ss.:
COUNTY OF FRANKLIN )
|
On this day of February, 1997, before me personally came to me known, , who,
being by me duly sworn, did depose and say that he resides at ; that he is
Treasurer of BANC ONE CORPORATION, one of the corporations described in and
which executed the foregoing 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.
Notary Public
[Notarial Seal]
STATE OF NEW YORK, )) ss.:
COUNTY OF NEW YORK,)
On this day of February, 1997 before me personally appeared , to me known, who,
being by me duly sworn, did depose and say that he resides at ; that he is a of
THE CHASE MANHATTAN BANK, one of the parties described in and which executed the
foregoing 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.
Notary Public
[Notarial Seal]
Page 56
Exhibit 4.10(b)
FIRST SUPPLEMENTAL INDENTURE, dated as of October 2, 1998, between BANK
ONE CORPORATION, a corporation duly organized and existing under the laws of the
State of Delaware ("ONE"), having its principal offices at One First National
Plaza, Chicago, Illinois 60670 and THE CHASE MANHATTAN BANK, a banking
corporation duly organized and existing under the laws of the State of New York,
as trustee (the "Trustee").
WHEREAS, BANC ONE CORPORATION ("BANC ONE") has heretofore executed and
delivered to the Trustee an Indenture, dated as of March 3, 1997 (the
"Indenture"), providing for the issuance from time to time of Subordinated Debt
Securities (herein and therein called the "Securities"); and
WHEREAS, effective as of October 2, 1998, BANC ONE merged with and into
ONE, a wholly owned subsidiary of BANC ONE; and
WHEREAS, Section 10.1 of the Indenture provides for the execution of an
indenture supplemental to the Indenture, in form satisfactory to the Trustee, to
evidence the succession of any successor corporation to BANC ONE under the
Indenture and the assumption of such successor corporation of the covenants of
BANC ONE in the Indenture and in the Securities pursuant to such Indenture; and
WHEREAS, all things necessary to make this First Supplemental Indenture a
valid agreement of ONE, as the successor corporation to BANC ONE, under the
Indenture, in accordance with its terms, have been done.
NOW, THEREFORE, ONE and the Trustee hereby agree as follows:
1. From and after the date of this First Supplemental Indenture, ONE shall
for all purposes be deemed to be the "Company", as such term is defined in the
Indenture and the Securities, as if ONE was originally so named in the Indenture
and the Securities, and, as such, ONE hereby expressly assumes, from and after
the date of this First Supplemental Indenture, the due and punctual payment of
the principal
of, premium, if any, and interest on all of the Securities and the performance
of every covenant of the Indenture, as supplemented by this First Supplemental
Indenture, on the part of the ONE to be performed or observed.
2. All provisions of this First Supplemental Indenture shall be deemed to
be incorporated in, and made a part of, the Indenture; and the Indenture, as
supplemented by this First Supplemental Indenture, shall be read, taken and
construed as one and the same instrument.
3. The Trustee accepts the trusts created by the Indenture, as
supplemented by this First Supplemental Indenture, and agrees to perform the
same upon the terms and conditions in the Indenture, as supplemented by this
First Supplemental Indenture.
4. The recitals contained in this First Supplemental Indenture shall be
taken as statements of ONE, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this First Supplemental Indenture.
5. All capitalized terms used and not defined herein shall have the
respective meanings assigned to them in the Indenture.
6. This First Supplemental Indenture shall be governed by and construed in
accordance with the laws of the State of New York.
7. This First Supplemental Indenture may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
instrument.
-2-
IN WITNESS WHEREOF, the parties hereto have caused the First Supplemental
Indenture to be duly executed, and their respective seals to be hereunto affixed
and attested, all as of the date first above written.
BANK ONE CORPORATION
ATTEST:
____________________________ By:
_____________________________
Title: _____________________ Title: Chief Financial
Officer
[Corporate Seal]
THE CHASE MANHATTAN
BANK,
as Trustee
ATTEST:
______________________________ By:
_____________________________
Title: _______________________ Title:
__________________________
|
[Corporate Seal]
-3-
STATE OF ILLINOIS )
) ss:
COUNTY OF COOK )
|
On the 2nd day of October, 1998, before me personally came Robert A.
Rosholt, to me known, who, being duly sworn, did depose and say that he is the
Chief Financial Officer of BANK ONE CORPORATION, one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
Notary Public
My Commission Expires:__________
-4-
STATE OF )
) ss:
COUNTY OF )
|
On the ___________ day of ___________ before me personally came
__________________ , to me known, who, being duly sworn, did depose and say that
he is a _____________________of THE CHASE MANHATTAN BANK, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
Notary Public
My Commission Expires:__________
-5-
Exhibit 4.11(a)
BANC ONE CORPORATION
AND
CITIBANK, N.A.
TRUSTEE
INDENTURE
DATED AS OF JULY 1, 1995
SUBORDINATED DEBT SECURITIES
1
TABLE OF CONTENTS 1/
Page
----
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 1.01. Definitions.............................................. 1
"this Indenture" and certain other
terms.................................................. 1
"Act".................................................... 2
"Affiliate".............................................. 2
"Authenticating Agent"................................... 3
"Authorized Newspaper"................................... 3
"Authorized Officer"..................................... 3
"Bearer Security"........................................ 3
"Board of Directors"..................................... 3
"Board Resolution"....................................... 3
"Business Day"........................................... 3
"CEDEL; CEDEL S.A."...................................... 3
"Commission"............................................. 3
"Common Depositary"...................................... 4
"Company"................................................ 4
"Company Request" and "Company
Order"................................................. 4
"corporation"............................................ 4
"coupon"................................................. 4
"Default"................................................ 4
"Defaulted Interest"..................................... 4
"Depositary"............................................. 4
"Designated Currency".................................... 4
"Dollar"................................................. 5
"ECU".................................................... 5
"Euroclear".............................................. 5
"European Communities"................................... 5
"Event of Default"....................................... 5
"Exchange Act"........................................... 5
"Exchange Rate".......................................... 5
"Exchange Rate Officer's
Certificate"........................................... 5
"Existing Subordinated Indebtedness"..................... 6
"Foreign Currency"....................................... 6
"General Obligations".................................... 6
"Global Exchange Rate"................................... 6
|
1/ THIS TABLE OF CONTENTS IS NOT PART OF THE INDENTURE.
2
CONTENTS, P. 2
Page
----
"Global Security"........................................ 6
"Holder"................................................. 7
"interest"............................................... 7
"Interest Payment Date".................................. 7
"Maturity"............................................... 7
"Officers' Certificate".................................. 7
"Opinion of Counsel"..................................... 7
"Original Issue Discount Security"....................... 7
"Outstanding"............................................ 7
"Paying Agent"........................................... 8
"Person"................................................. 9
"Place of Payment"....................................... 9
"Predecessor Security"................................... 9
"Principal Corporate Trust Office"....................... 9
"Principal Paying Agent"................................. 9
"Redemption Date"........................................ 9
"Redemption Price"....................................... 9
"Registered Security".................................... 9
"Regular Record Date".................................... 9
"Remarketing Entity"..................................... 10
"Repayment Date"......................................... 10
"Repayment Price"........................................ 10
"Responsible Officer".................................... 10
"Security"; "Securities"................................. 10
"Security Register"...................................... 10
"Security Registrar"..................................... 10
"Senior Indebtedness".................................... 10
"Special Record Date".................................... 11
"Stated Maturity"........................................ 11
"Subsidiary of the Company" or
"Subsidiary"........................................... 11
"Trustee"................................................ 11
"Trust Indenture Act" or "TIA"........................... 12
"United States".......................................... 12
"United States Alien".................................... 12
"vice president"......................................... 12
SECTION 1.02. Compliance Certificates and Opinions..................... 12
SECTION 1.03. Form of Documents Delivered to
Trustee................................................ 13
SECTION 1.04. Acts of Holders.......................................... 14
SECTION 1.05. Notices, etc., to Trustee and
Company................................................ 17
SECTION 1.06. Notices to Holders; Waiver............................... 18
SECTION 1.07. Language of Notices, Etc................................. 19
SECTION 1.08. Conflict with Trust Indenture Act........................ 19
|
3
CONTENTS, P. 3
Page
----
SECTION 1.09. Effect of Headings and Table of
Contents............................................... 19
SECTION 1.10. Successors and Assigns................................... 19
SECTION 1.11. Separability Clause...................................... 20
SECTION 1.12. Benefits of Indenture.................................... 20
SECTION 1.13. Legal Holidays........................................... 20
SECTION 1.14. Governing Law............................................ 20
ARTICLE TWO
Security Forms
SECTION 2.01. Form Generally........................................... 20
SECTION 2.02. Form of Securities....................................... 21
SECTION 2.03. Form of Trustee's Certificate of
Authentication......................................... 22
SECTION 2.04. Global Securities........................................ 22
ARTICLE THREE
The Securities
SECTION 3.01. Title and Terms.......................................... 23
SECTION 3.02. Denominations............................................ 26
SECTION 3.03. Execution, Authentication, Delivery
and Dating............................................. 26
SECTION 3.04. Temporary Securities..................................... 30
SECTION 3.05. Registration, Registration of
Transfer and Exchange.................................. 34
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen
Securities............................................. 39
SECTION 3.07. Payment of Interest; Interest
Rights Preserved....................................... 41
SECTION 3.08. Persons Deemed Owners.................................... 43
SECTION 3.09. Cancellation............................................. 44
SECTION 3.10. Computation of Interest.................................. 44
SECTION 3.11. Forms of Certification................................... 44
SECTION 3.12. Judgments................................................ 45
|
4
CONTENTS, P. 4
Page
----
ARTICLE FOUR
Redemption of Securities
SECTION 4.01. Applicability of Article................................ 46
SECTION 4.02. Election to Redeem; Notice to
Trustee............................................... 46
SECTION 4.03. Selection by Security Registrar of
Securities to be Redeemed............................. 46
SECTION 4.04. Notice of Redemption.................................... 47
SECTION 4.05. Deposit of Redemption Price............................. 48
SECTION 4.06. Securities Payable on Redemption
Date.................................................. 48
SECTION 4.07. Securities Redeemed in Part............................. 49
SECTION 4.08. Redemption Suspended During Event of
Default............................................... 50
ARTICLE FIVE
Covenants
SECTION 5.01. Payment of Principal, Premium and
Interest.............................................. 50
SECTION 5.02. Maintenance of Office or Agency......................... 51
SECTION 5.03. Money for Security Payments to Be
Held in Trust......................................... 53
SECTION 5.04. Additional Amounts...................................... 55
SECTION 5.05. Statement as to Compliance.............................. 56
SECTION 5.06. Maintenance of Corporate Existence,
Rights and Franchises................................. 56
ARTICLE SIX
Holder's Lists and Reports
by Trustee and Company
SECTION 6.01. Company to Furnish Trustee Names
and Addresses of Holders.............................. 57
SECTION 6.02. Preservation of Information;
Communications to Holders............................. 57
SECTION 6.03. Reports by Trustee...................................... 59
SECTION 6.04. Reports by Company...................................... 60
|
5
CONTENTS, P. 5
Page
----
ARTICLE SEVEN
Remedies
SECTION 7.01. Events of Default....................................... 61
SECTION 7.02. Acceleration of Maturity; Rescission
and Annulment......................................... 62
SECTION 7.03. Collection of Indebtedness and Suits
for Enforcement by Trustee............................ 63
SECTION 7.04. Trustee May File Proofs of Claim........................ 64
SECTION 7.05. Trustee May Enforce Claims Without
Possession of Securities.............................. 65
SECTION 7.06. Application of Money Collected.......................... 65
SECTION 7.07. Limitation on Suits..................................... 66
SECTION 7.08. Unconditional Right of Holders
to Receive Principal, Premium
and Interest.......................................... 68
SECTION 7.09. Restoration of Rights and Remedies...................... 68
SECTION 7.10. Rights and Remedies Cumulative.......................... 68
SECTION 7.11. Delay or Omission Not Waiver............................ 68
SECTION 7.12. Control by Noteholders.................................. 69
SECTION 7.13. Waiver of Past Defaults................................. 69
SECTION 7.14. Undertaking for Costs................................... 70
SECTION 7.15. Waiver of Stay or Extension Laws........................ 70
ARTICLE EIGHT
The Trustee
SECTION 8.01. Certain Duties and Responsibilities..................... 71
SECTION 8.02. Notice of Default....................................... 72
SECTION 8.03. Certain Rights of Trustee............................... 73
SECTION 8.04. Not Responsible for Recitals or
Issuance of Notes..................................... 74
SECTION 8.05. May Hold Securities..................................... 74
SECTION 8.06. Money Held in Trust..................................... 74
SECTION 8.07. Compensation and Reimbursement.......................... 75
SECTION 8.08. Disqualification; Conflicting
Interests............................................. 76
SECTION 8.09. Corporate Trustee Required;
Eligibility........................................... 76
SECTION 8.10. Resignation and Removal; Appointment
of Successor.......................................... 77
SECTION 8.11. Acceptance of Appointment by
Successor............................................. 79
|
6
CONTENTS, P. 6
Page
----
SECTION 8.12. Merger, Conversion, Consolidation
or Succession to Business of
Trustee............................................... 80
SECTION 8.13. Preferential Collection of Claims
against Company....................................... 81
SECTION 8.14. Appointment of Authenticating Agents.................... 81
ARTICLE NINE
Supplemental Indentures
SECTION 9.01. Supplemental Indentures Without
Consent of Holders.................................... 83
SECTION 9.02. Supplemental Indentures With
Consent of Holders.................................... 85
SECTION 9.03. Execution of Supplemental Indentures.................... 87
SECTION 9.04. Effect of Supplemental Indentures....................... 87
SECTION 9.05. Conformity with Trust Indenture Act..................... 87
SECTION 9.06. Reference in Securities to
Supplemental Indentures............................... 87
SECTION 9.07. Subordination Unimpaired................................ 87
ARTICLE TEN
Consolidation, Merger, Conveyance or Transfer
SECTION 10.01. Company May Consolidate, etc., Only
on Certain Terms...................................... 88
SECTION 10.02. Successor Corporation Substituted....................... 88
ARTICLE ELEVEN
Satisfaction and Discharge
SECTION 11.01. Satisfaction and Discharge of
Indenture............................................. 89
SECTION 11.02. Application of Trust Money.............................. 90
SECTION 11.03. Reinstatement........................................... 91
|
7
CONTENTS, P. 7
Page
----
ARTICLE TWELVE
Immunity of Incorporations, Stockholders,
Officers and Directors
SECTION 12.01. Exemption from Individual Liability.................... 91
ARTICLE THIRTEEN
Sinking Funds
SECTION 13.01. Applicability of Article................................ 92
SECTION 13.02. Satisfaction of Sinking Fund
Payments with Securities.............................. 92
SECTION 13.03. Redemption of Securities for
Sinking Fund.......................................... 93
ARTICLE FOURTEEN
Subordination of Securities
SECTION 14.01. Agreement to Subordinate................................ 93
SECTION 14.02. Distribution on Dissolution,
Liquidation and Reorganization;
Subrogation of Securities............................. 93
SECTION 14.03. Payments on Securities Prohibited
During Event of Default under
Senior Indebtedness................................... 98
SECTION 14.04. Payments on Securities Permitted........................ 98
SECTION 14.05. Authorization of Holders to
Trustee to Effect Subordination......................... 99
SECTION 14.06. Notice To Trustee....................................... 99
SECTION 14.07. Right of Trustee to Hold Senior
Indebtedness or General
Obligations........................................... 99
SECTION 14.08. Article Fourteen Not to Prevent
Defaults or Events of Default......................... 99
SECTION 14.09. Securities to Rank Pari Passu with
Existing Subordinated
Indebtedness; Payment of Proceeds
in Certain Cases...................................... 100
|
8
CONTENTS, P. 8
Page
----
ARTICLE FIFTEEN
Repayment at the Option of Holders
SECTION 15.01. Applicability of Article................................ 102
SECTION 15.02 Repayment of Securities................................. 102
SECTION 15.03. Exercise of Option; Notice.............................. 102
SECTION 15.04. Election of Repayment by
Remarketing Entities.................................. 104
SECTION 15.05. Securities Payable on the
Repayment Date........................................ 104
ARTICLE SIXTEEN
Meetings of Holders of Securities
SECTION 16.01. Purposes for Which Meetings May Be...................... 105
Called................................. ..............
SECTION 16.02. Call, Notice and Place of Meetings...................... 105
SECTION 16.03. Persons Entitled to Vote at
Meetings.............................................. 106
SECTION 16.04. Quorum; Action.......................................... 106
SECTION 16.05. Determination of Voting Rights;
Conduct and Adjournment of
Meetings.............................................. 107
SECTION 16.06. Counting Votes and Recording
Action of Meetings.................................... 108
ARTICLE SEVENTEEN
Miscellaneous
SECTION 17.01. Counterparts............................................ 109
TESTIMONIUM.............................................................. 110
SIGNATURES AND SEALS..................................................... 110
ACKNOWLEDGMENTS.......................................................... 111
EXHIBIT A. Form of Certificate to be Given by
Person Entitled to Receive Bearer
Security
EXHIBIT B. Form of Certificate to be Given by
Euro-clear and CEDEL S.A. in
Connection with the Exchange of a
Portion of a Temporary Global Security
|
9
CONTENTS, P. 9
Page
----
EXHIBIT C. Form of Certificate to be Given by
Euro-clear and CEDEL S.A. to Obtain
Interest Prior to an Exchange Date
EXHIBIT D. Form of Certificate to be Given by
Beneficial Owners to Obtain Interest
|
10
CONTENTS, P. 10
TABLE SHOWING REFLECTION IN INDENTURE OF CERTAIN PROVISIONS
OF TRUST INDENTURE ACT OF 1939
Reflected in Indenture
-----------------------
Section
-----------------------
TIA
(S)310(a)(1)........................ 8.09
(a)(2)........................ 8.09
(a)(3)........................ Not Applicable
(a)(4)........................ Not Applicable
(a)(5)........................ 8.09
(b) ........................ 8.08
8.10
(c) ........................ Not Applicable
(S)311(a) ........................ 8.13
(b) ........................ 8.13
(S)312(a) ........................ 6.01
6.02(i)
(b) ........................ 6.02(ii)
(c) ........................ 6.02(iii)
(S)313(a) ........................ 6.03(i)
(b) ........................ 6.03(ii)
(c) ........................ 6.03(i), (ii) and (iii)
(d) ........................ 6.03(iii)
(S)314(a) ........................ 6.04
5.05
(b) ........................ Not Applicable
(c)(1)........................ 1.02
(c)(2)........................ 1.02
(c)(3)........................ Not Applicable
(d) ........................ Not Applicable
(e) ........................ 1.02
(f) ........................ Not Applicable
(S)315(a) ........................ 8.01(i)
........................ 8.01(iii)
(b) ........................ 8.02
(c) ........................ 8.01(ii)
(d) ........................ 8.01
(d)(1)........................ 8.01(i)
(d)(2)........................ 8.01(iii)(b)
(d)(3)........................ 8.01(iii)(c)
(e) ........................ 7.14
(S)316(a) ........................ 1.01
|
11
CONTENTS, P. 11
Reflected in Indenture
-----------------------
Section
-----------------------
(S)316(a)(1)(A)...................... 7.02
7.12
(a)(1)(B)...................... 7.13
(a)(2) ...................... Not Applicable
(b) ...................... 7.08
(c) ...................... 1.04(viii)
(S)317(a)(1) ...................... 7.03
(a)(2) ...................... 7.04
(b) ...................... 5.03
(S)318(a) ...................... 1.08
(c) ...................... 1.08
|
12
THIS INDENTURE is entered into as of July 1, 1995, between BANC ONE CORPORATION,
a corporation organized and existing under the laws of the State of Ohio
(hereinafter called the "Company"), having its principal executive office at 100
East Broad Street, Columbus, Ohio 43271, and CITIBANK, N.A., a national banking
association (hereinafter called the "Trustee"), having its principal corporate
trust office at 120 Wall Street, New York, New York 10043.
RECITALS OF THE COMPANY
The Company deems it necessary from time to time to issue its unsecured
subordinated debentures, notes, bonds and other evidences of indebtedness to be
issued in one or more series (hereinafter called the "Securities") as
hereinafter set forth, and to provide therefor the Company has duly authorized
the execution and delivery of this Indenture.
All things necessary to make this Indenture a valid agreement of the Company, in
accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by
the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of any series thereof,
as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(i) the term "this Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 3.01;
(ii) all references in this instrument to designated "Articles", "Sections" and
other subdivisions are to the designated Articles, Sections and other
subdivisions of this Indenture. 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;
(iii) the terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular;
(iv) all other terms used herein which are defined in the Trust Indenture Act,
either directly or by reference therein, have the meanings assigned to them
therein; and
(V) all accounting terms not otherwise defined herein have the meanings assigned
to them in accordance with generally accepted accounting principles, and, except
as may be otherwise expressly provided herein or in one or more indentures
supplemental hereto, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted at the date of such computation.
"Act", when used with respect to any Holder, has the meaning specified in
Section 1.04.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized to act on behalf of the
Trustee to authenticate Securities pursuant to Section 8.14.
"Authorized Newspaper" means a newspaper, in an official language of the country
of publication or in the English language, customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and of
general circulation in the place in connection with which the term is used or in
the financial community of such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Authorized Officer" means the Chairman of the Board, the President, any Vice
Chairman of the Board, any Vice President, the Treasurer, the Secretary, the
Comptroller, any Assistant Comptroller, any Assistant Treasurer or any Assistant
Secretary of the Company.
13
"Bearer Security" means any Security in the form established pursuant to Section
2.02 which is payable to bearer, including, without limitation, unless the
context otherwise indicates, a Security in global bearer form.
"Board of Directors" means either the board of directors of the Company or any
duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day" means any day, other than a Saturday or Sunday, on which banking
institutions in the City of Columbus, Ohio and any Place of Payment for the
Securities are open for business.
"CEDEL" or "CEDEL S.A." means Cedel Bank, societe anonymne or its successors.
"Commission" means the Securities and Exchange Commission, as from time to time
constituted, created under the Exchange Act, or if any time after the execution
and delivery of this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Depositary" has the meaning specified in Section 3.04(b)(ii).
"Company" means the Person named as the "Company" in the first paragraph of this
instrument until any successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
any such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written request or
order signed in the name of the Company by its Chairman of the Board, its
President, a Vice Chairman of the Board, or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Comptroller, an Assistant Comptroller,
its Secretary or an Assistant Secretary, and delivered to the Trustee.
"corporation" includes corporations, associations, companies and business
trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Default" has the meaning specified in Section 7.07.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Depositary" means, with respect to the Securities of any series issuable or
issued in the form of a Global Security, the Person designated as Depositary by
the Company pursuant to Section 3.01 until a successor Depositary shall have
been appointed pursuant to Section 3.05, 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
Securities of that series.
"Designated Currency" has the meaning specified in Section 3.12.
"Dollar" or "$" 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.
"ECU" means the European Currency Unit as defined and revised from time to time
by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels Office, as
operator of the Euroclear System.
"European Communities" means the European Economic Community, the European Coal
and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 7.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from time
to time, and any statute successor thereto.
"Exchange Rate" shall have the meaning specified as contemplated in Section
3.01.
"Exchange Rate Agent" shall have the meaning specified as contemplated in
Section 3.01.
14
"Exchange Rate Officer's Certificate" with respect to any date for the payment
of principal of (and premium, if any) and interest on any series of Securities,
means a certificate setting forth the applicable Exchange Rate and the amounts
payable in Dollars and Foreign Currencies in respect of the principal of (and
premium, if any) and interest on Securities denominated in ECU, any other
composite currency or Foreign Currency, and signed by the Chairman of the Board,
a Vice Chairman of the Board, the President, any Vice President, the Treasurer
or any Assistant Treasurer of the Company or the Exchange Rate Agent appointed
pursuant to Section 3.01 and delivered to the Trustee.
"Existing Subordinated Indebtedness" means, unless otherwise determined with
respect to any series of Securities pursuant to Section 3.01, the Company's
7.25% Subordinated Notes Due August 1, 2002, the Company's 8.74% Subordinated
Notes Due September 15, 2003, the Company's 9.875% Subordinated Notes Due March
1, 2009, and the Company's 10.00% Subordinated Notes Due August 15, 2010.
"Foreign Currency" means a currency issued by the government of any country
other than the United States of America.
"General Obligations" means, unless otherwise determined with respect to any
series of Securities pursuant to Section 3.01, all obligations of the Company to
make payment on account of claims in respect of derivative products such as
interest and foreign exchange rate contracts, commodity contracts and similar
arrangements, other than (i) obligations on account of Senior Indebtedness, (ii)
obligations on account of indebtedness for money borrowed ranking pari passu
with or subordinate to the Securities and (iii) obligations which by their terms
are expressly stated not to be superior in right of payment to the Securities or
to rank on a parity with the Securities; provided, however, that notwithstanding
the foregoing, in the event that any rule, guideline or interpretation
promulgated or issued by the Board of Governors of the Federal Reserve System
(or other competent regulatory agency or authority), as from time to time in
effect, establishes or specifies criteria for the inclusion in regulatory
capital of subordinated debt of a bank holding company requiring that such
subordinated debt be subordinated to obligations to creditors in addition to
those set forth above, then the term "General Obligations" shall also include
such additional obligations to creditors, as from time to time in effect
pursuant to such rules, guidelines or interpretations. For purposes of this
definition, "claim" shall have the meaning assigned thereto in Section 101(4) of
the Bankruptcy Code of 1978, as amended to the date of this instrument.
"Global Exchange Date" has the meaning specified in Section 3.04(b)(iv).
"Global Security" means a Security issued to evidence all or a part of a series
of Securities in accordance with Section 3.03.
"Holder", with respect to a Registered Security, means a Person in whose name
such Registered Security is registered in the Security Register and, with
respect to a Bearer Security (or any temporary Global Security) or a coupon,
means the bearer thereof.
"interest", when used with respect to an Original Issue Discount Security which
by its terms bears interest only after Maturity, means interest payable after
Maturity.
"Interest Payment Date", when used with respect to any series of Securities,
means the Stated Maturity of an installment of interest on such Securities.
"Maturity", when used with respect to any Security, means the date on which the
principal of such Security (or any installment of principal) becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the Board,
the President, a Vice Chairman of the Board, or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Comptroller, an Assistant Comptroller,
the Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee. Each such certificate shall contain the statements set forth in Section
1.02, if applicable.
"Opinion of Counsel" means a written opinion of counsel, who may (except as
otherwise expressly provided in this Indenture) be an employee of the Company,
and who shall be reasonably acceptable to the Trustee. Each such opinion shall
contain the statements set forth in Section 1.02, if applicable.
"Original Issue Discount Security" means any Security which 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 7.02.
"Outstanding" when used with respect to Securities or Securities of any series,
means, as of the date of determination, all such Securities theretofore
authenticated and delivered under this Indenture, except:
(i) such Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
15
(ii) such Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the Holders of
such Securities; provided that, if such Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(iii) such Securities in lieu of which other Securities have been authenticated
and delivered pursuant to Section 3.06 of this Indenture;
provided, however, that in determining whether the Holders of the requisite
principal amount of such Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities, the principal amount of
Original Issue Discount Securities 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 7.02, and Securities owned by the
Company or any other obligor upon the Securities or any Affiliate of the Company
or such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which a Responsible Officer of the Trustee actually
knows to be so owned shall be disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the principal
of, premium, if any, or interest on any Securities or any coupons appertaining
thereto on behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any series,
means the place or places where, subject to the provisions of Section 5.02, the
principal of (and premium, if any) and interest on the Securities of that series
are payable as specified in accordance with Section 3.01.
"Predecessor Security" of any particular Security means every previous Security
evidencing all or a portion of the same debt as that evidenced by such
particular Security; and for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Security.
"Principal Corporate Trust Office" means the principal office of the Trustee, at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this instrument is at the
address set forth in the first paragraph of this instrument.
"Principal Paying Agent" means the Paying Agent, if any, designated as such by
the Company pursuant to Section 3.01 of this Indenture.
"Redemption Date", when used with respect to any Security to be redeemed, means
the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed, means
the price specified in such Security at which it is to be redeemed pursuant to
this Indenture.
"Registered Security" means any Security in the form established pursuant to
Section 2.02 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Security on any Interest
Payment Date means the date, if any, specified in such Security as the "Regular
Record Date".
"Remarketing Entity", when used with respect to the Securities of any series
which are repayable at the option of the Holders thereof before their Stated
Maturity, means any Person designated by the Company to purchase any such
Securities .
"Repayment Date", when used with respect to any Security to be repaid upon
exercise of option for repayment by the Holder, means the date fixed for such
repayment pursuant to this Indenture.
"Repayment Price", when used with respect to any Security to be repaid upon
exercise of option for repayment by the Holder, means the price at which it is
to be repaid pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee, means any vice
president, any assistant vice president, any senior trust
16
officer, any trust officer or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer of the Trustee to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Security" or "Securities" means any Security or Securities, as the case may be,
authenticated and delivered under this indenture; provided, however, that, if at
any time there is more than one Person acting as Trustee under this Indenture,
"Securities", with respect to any such Person, shall mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
"Security Register" has the meaning specified in Section 3.05.
"Security Registrar" has the meaning specified in Section 3.05.
"Senior Indebtedness" means the principal of, premium, if any, and interest on
(i) all of the Company's indebtedness for money borrowed, other than the
Securities and the Existing Subordinated Indebtedness whether outstanding on the
date of execution of this Indenture or thereafter created, assumed or incurred,
except such indebtedness as is by its terms expressly stated to be not superior
in right of payment to the Securities or the Existing Subordinated Indebtedness
or to rank pari passu with the Securities or the Existing Subordinated
Indebtedness and (ii) any deferrals, renewals or extensions of any such Senior
Indebtedness. The term "indebtedness for money borrowed" as used in the
foregoing sentence shall include, without limitation, any obligation of, or any
obligation guaranteed by, the Company for the repayment of borrowed money,
whether or not evidenced by bonds, debentures, notes or other written
instruments, and any deferred obligation for the payment of the purchase price
of property or assets.
"Special Record Date" for the payment of any Defaulted Interest means the date
fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity", when used with respect to any Security, or any installment of
principal thereof or interest thereon, means the date specified in such Security
as the fixed date on which the principal of such Security, or such installment
of principal or interest, is due and payable.
"Subsidiary of the Company" or "Subsidiary" means a corporation at least a
majority of the outstanding voting stock of which is owned, directly or
indirectly, by the Company or by one or more Subsidiaries of the Company, or by
the Company and one or more Subsidiaries of the Company.
As used under this heading, the term "voting stock" means stock having ordinary
voting power for the election of directors irrespective of whether or not stock
of any other class or classes shall have or might have voting power by reason of
the happening of any contingency.
"Trustee" means the Person named as the "Trustee" in the first paragraph of this
instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" or "TIA" (except as herein otherwise expressly provided)
means the Trust Indenture Act of 1939, as in force at the date as of which this
instrument was executed, and, to the extent required by law, as amended.
"United States" means the United States of America (including the States and the
District of Columbia), its territories, its possessions and other areas subject
to its jurisdiction.
"United States Alien", except as otherwise provided in or pursuant to this
Indenture, means any Person who, for United States Federal income tax purposes,
is a foreign corporation, a nonresident alien individual, a non- resident alien
fiduciary of a foreign estate or trust, or a foreign partnership one or more of
the members of which is, for United States Federal income tax purposes, a
foreign corporation, a non-resident alien individual or a non- resident alien
fiduciary of a foreign estate or trust.
"vice president", when used with respect to the Company or the Trustee, means
any vice president, whether or not designated by a number or a word or words
added before or after the title "vice president".
SECTION 1.02. Compliance Certificates and Opinions. Upon any application or
request by the Company to the Trustee to take any action under any provision of
this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
17
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (except as otherwise expressly provided
in this Indenture) shall include: (i) a statement that each individual signing
such certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(ii) 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;
(iii) a statement that, in the opinion of each such individual, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(iv) a statement as to whether, in the opinion of each such individual, such
condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee. In any case where several
matters are required to be certified by, or covered by an opinion of, any
specified Person, it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or give an opinion
with respect to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such matters
in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as
it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more applications,
requests, consents, certificates, statements, opinions or other instruments
under this Indenture, they may, but need not, be consolidated and form one
instrument.
SECTION 1.04. Acts of Holders. (i) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders or Holders of any series may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by an agent duly appointed in writing. If Securities
of a series are issuable in whole or in part as Bearer Securities, any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders may, alternatively,
be embodied in and evidenced by the record of Holders of Securities voting in
favor thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities duly called and held in accordance with the
provisions of Article Sixteen or a combination of such instruments and any such
record. Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered to
the Trustee, and, where it is hereby expressly required, to the Company. Such
instrument or instruments and any such record (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments and so voting at any such
meeting. Proof of execution of any such instrument or of a writing appointing
any such agent, or the holding by any Person of a Security, shall be sufficient
for any purpose of this Indenture and (subject to Section 8.01) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section. The record of any meeting of Holders of Securities shall be proved in
the manner provided in Section 16.06.
(ii) The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by the
certificate of any notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
or on behalf of any legal entity other than an individual, such certificate or
affidavit shall also constitute proof of the authority of the Person executing
the same. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(iii) The ownership of Registered Securities shall be proved by the Security
Register.
(iv) The principal amount and serial numbers of Bearer Securities held by any
Person, and the date of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank or other depositary, wherever situated, if such certificate shall
be deemed by the Trustee to be satisfactory, showing that at the date therein
mentioned such Person had on deposit with such depositary, or exhibited to it,
the Bearer Securities therein described; or such facts may be proved by the
certificate or affidavit of the Person holding such Bearer Securities, if such
certificate or affidavit is deemed by the Trustee to be satisfactory. The
Trustee and the Company may assume that such ownership of any Bearer Security
continues until (1) another certificate or affidavit bearing a later date issued
in respect of the same Bearer Security is produced, or (2) such Bearer Security
is produced to the Trustee by some other Person, or (3) such Bearer Security is
surrendered in exchange for a Registered Security, or (4) such Bearer Security
is no longer Outstanding.
18
(v) The fact and date of execution of any such instrument or writing, the
authority of the Person executing the same and the principal amount and serial
numbers of Bearer Securities held by the Person so executing such instrument or
writing and the date of holding the same may also be proved in any other manner
which the Trustee deems sufficient; and the Trustee may in any instance require
further proof with respect to any of the matters referred to in this Section.
(vi) Any request, demand, authorization, direction, notice, consent, waiver or
other action by the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof, in respect of any
action taken, suffered or omitted by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Security.
(vii) For purposes of determining the principal amount of Outstanding Securities
of any series the Holders of which are required, requested or permitted to give
any request, demand, authorization, direction, notice, consent, waiver or take
any other Act under the Indenture, each Security denominated in a Foreign
Currency or composite currency shall be deemed to have the principal amount
determined by the Exchange Rate Agent by converting the principal amount of such
Security in the currency in which such Security is denominated into Dollars at
the Exchange Rate as of the date such Act is delivered to the Trustee and, where
it is hereby expressly required, to the Company, by Holders of the required
aggregate principal amount of the Outstanding Securities of such series (or, if
there is no such rate on such date, such rate on the date determined as
specified as contemplated in Section 3.01).
(viii) The Company may, in the circumstances permitted by the Trust Indenture
Act, set a record date for purposes of determining the identity of Holders of
Securities of any series entitled to give any request, demand, authorization,
direction, notice, consent, waiver or take any other Act, or to vote or consent
to any action by vote or consent authorized or permitted to be given or taken by
Holders of Securities of such series. If not set by the Company prior to the
first solicitation of a Holder of Securities of such Series made by any Person
in respect of any such action, or in the case of any such vote, prior to such
vote, such record date shall be the later of 30 days prior to the first
solicitation of such consent or the date of the most recent list of Holders of
such Securities furnished to the Trustee pursuant to Section 6.01 prior to such
solicitation.
(ix) Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount. Any notice given or action
taken by a Holder or its agents with regard to different parts of such principal
amount pursuant to this paragraph shall have the same effect as if given or
taken by separate Holders of each such different part. (x) Without limiting the
generality of the foregoing, unless otherwise specified pursuant to Section 3.01
or pursuant to one or more indentures supplemental hereto, a Holder, including a
Depositary that is the Holder of a Global Security, may make, give or take, by a
proxy or proxies duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other action provided in this Indenture to
be made, given or taken by Holders, and a Depositary that is the Holder of a
Global Security may provide its proxy or proxies to the beneficial owners of
interests in any such Global Security through such Depositary's standing
instructions and customary practices.
(xi) The Company may fix a record date for the purpose of determining the
Persons who are beneficial owners of interests in any Global Security held by a
Depositary entitled under the procedures of such Depositary to make, give or
take, by a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by Holders. If such a record date is
fixed, the Holders on such record date or their duly appointed proxy or proxies,
and only such Persons, shall be entitled to make, give or take such request,
demand, authorization, direction, notice, consent, waiver or other action,
whether or not such Holders remain Holders after such record date. No such
request, demand, authorization, direction, notice, consent, waiver or other
action shall be valid or effective if made, given or taken more than 90 days
after such record date.
SECTION 1.05. Notices, etc., to Trustee and Company. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(i) the Trustee by any Holder or by the Company shall be sufficient for every
purpose hereunder if made, given, furnished or filed in writing to or with the
Trustee at its Principal Corporate Trust Office, or
(ii) the Company by any Holder or by the Trustee shall be sufficient for every
purpose hereunder (unless otherwise herein expressly provided) if in writing and
mailed, first-class, postage prepaid, to the Company, to the attention of its
Treasurer, addressed to it at the address of its principal office specified in
the first paragraph of this Indenture or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 1.06. Notices to Holders; Waiver. Where this Indenture or any Security
provides for notice to Holders of any event,
(1) such notice shall be sufficiently given (unless otherwise herein or in such
Security expressly provided) if in writing and mailed, first- class, postage
prepaid, to each Holder of Registered Securities affected by such event, at his
address as it appears in the Security
19
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice.
(2) such notice shall be sufficiently given to Holders of Bearer Securities if
published in an Authorized Newspaper in The City of New York and, if the
Securities of such series are then listed on The International Stock Exchange of
the United Kingdom and the Republic of Ireland Limited and such stock exchange
shall so require, in London and, if the Securities of such series are then
listed on the Luxembourg Stock Exchange and such stock exchange shall so
require, in Luxembourg and, if the Securities of such series are then listed on
any other stock exchange and such stock exchange shall so require, in any other
required city outside the United States, 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.
In case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice to Holders of
Registered Securities by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder. In any case where notice to Holders of Registered Securities
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of Registered Securities 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 Bearer
Securities given as provided above. In case by reason of the suspension of
publication of any Authorized Newspaper or Authorized Newspapers or by reason of
any other cause it shall be impracticable to publish any notice to Holders of
Bearer Securities as provided above, then such notification to Holders of Bearer
Securities as shall be given with the approval of the Trustee shall constitute
sufficient notice to such Holders for every purpose hereunder. Neither the
failure to give notice by publication to Holders of Bearer Securities as
provided above, nor any defect in any notice so published, shall affect the
sufficiency of any notice mailed to Holders of Registered Securities as provided
above.
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 1.07. Language of Notices, Etc. Any request, demand, authorization,
direction, notice, consent, or waiver required or permitted under this Indenture
shall be in the English language, except that any published notice may be in an
official language of the country of publication.
SECTION 1.08. Conflict with Trust Indenture Act. If and to the extent that any
provision of this Indenture limits, qualifies or conflicts with the duties
imposed by, or with another provision (an "incorporated provision") included in
this Indenture by operation of Sections 310 and 318, inclusive, of the TIA, such
imposed duties or incorporated provision shall control.
SECTION 1.09. Effect of Headings and Table of Contents. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
SECTION 1.10. Successors and Assigns. All covenants and agreements in this
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 1.11. Separability Clause. In case any provision in this Indenture or in
the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 1.12. Benefits of Indenture. Nothing in this Indenture or in the
Securities, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, the Holders and, to the extent provided
in Article Fourteen hereof, the holders of Senior Indebtedness and creditors in
respect of General Obligations, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 1.13. Legal Holidays. In any case where any Interest Payment Date,
Stated Maturity, Repayment Date or Redemption Date of any Security or any date
on which any Defaulted Interest is proposed to be paid shall not be a Business
Day at any Place of Payment, then (notwithstanding any other provisions of the
Securities or this Indenture) payment of the principal of, premium, if any, or
interest on any Securities need not be made at such Place of Payment on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date, Stated Maturity, Repayment
or Redemption Date or on the date on which Defaulted Interest is proposed to be
paid and, if such payment is made, no interest shall accrue on such payment for
the period from and after any such Interest Payment Date, Stated Maturity,
Repayment Date or Redemption Date or date on which Defaulted Interest is
proposed to be paid, as the case may be.
SECTION 1.14. Governing Law. This Indenture and the Securities shall be
construed in accordance with and governed by the laws of the State of New York.
20
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Form Generally. All Securities and any related coupons shall have
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon
as may be required to comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the officers executing such
Securities or coupons, as evidenced by their execution of the Securities or
coupons.
The Trustee's certificates of authentication shall be in substantially the form
set forth in this Article.
Unless otherwise provided as contemplated by Section 3.01 with respect to any
series of Securities, the Securities of each series shall be issuable in
registered form without coupons. If so provided as contemplated by Section 3.01,
the Securities of a series shall be issuable solely in bearer form, or in both
registered form and bearer form. Unless otherwise specified as contemplated by
Section 3.01, Securities in bearer form shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed or engraved
or produced by any combination of these methods on a steel engraved border or
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities or coupons, as evidenced by their
execution of such Securities or coupons.
SECTION 2.02. Form of Securities. Each Security and coupon shall be in one of
the forms approved from time to time by or pursuant to a Board Resolution. Upon
or prior to the delivery of a Security or coupons in any such form to the
Trustee for authentication, the Company shall deliver to the Trustee the
following:
(i) the Board Resolution by or pursuant to which such form of Security or
coupons has been approved, certified by the Secretary or an Assistant Secretary
of the Company;
(ii) the Officers' Certificate required by Section 3.01 of this Indenture;
(iii) the Company Order required by Section 3.03 of this Indenture; and (iv) the
Opinion of Counsel required by Section 3.03 of this Indenture.
If temporary Securities of any series are issued in global form as permitted by
Section 3.04, the form thereof shall be established as provided in Section 2.02.
SECTION 2.03. Form of Trustee's Certificate of Authentication.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
CITIBANK, N.A., AS TRUSTEE
by
AUTHORIZED OFFICER
SECTION 2.04. Global Securities. If Securities of a series are issuable in whole
or in part in global form, as specified as contemplated by Section 3.01, then,
notwithstanding clause (xii) of Section 3.01 and the provisions of Section 3.02,
such Global Security shall represent such of the outstanding Securities of such
series as shall be specified therein and may provide that it shall represent the
aggregate amount of Outstanding Securities from time to time endorsed thereon
and that the aggregate amount of Outstanding Securities represented thereby may
from time to time be reduced to reflect exchanges or increased to reflect the
issuance of additional uncertificated securities of such series. Any endorsement
of a Global Security to reflect the amount, or any increase or decrease in the
amount, of Outstanding Securities represented thereby shall be made in such
manner and upon instructions given by such Person or Persons as shall be
specified therein or in the Company Order to be delivered to the Trustee
pursuant to Section 3.03 or Section 3.04.
Global Securities may be issued in either registered or bearer form and in
either temporary or permanent form.
21
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Title and Terms. The aggregate principal amount of Securities
which may be authenticated and delivered under this Indenture is unlimited. The
Securities may be issued up to the aggregate principal amount of Securities from
time to time authorized by or pursuant to a Board Resolution.
The Securities may be issued in one or more series. All Securities of each
series issued under this Indenture shall in all respects be equally and ratably
entitled to the benefits hereof with respect to such series without preference,
priority or distinction on account of the actual time or times of the
authentication and delivery or Maturity of the Securities of such series. There
shall be established in or pursuant to a Board Resolution, and set forth in, or
determined in the manner provided in, an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series,
(i) the title of the Securities of the series (which shall distinguish the
Securities of the series from all other Securities);
(ii) any limit upon the aggregate principal amount or aggregate initial public
offering price of the Securities of the series which may be authenticated and
delivered under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Securities of that series pursuant to this Article Three or Sections 4.07,
9.06 or 14.03);
(iii) the priority of payment, if any, of the Securities;
(iv) The price or prices (which may be expressed as a percentage of the
aggregate principal amount thereof) at which the Securities will be issued;
(v) the date or dates on which the principal and premium, if any, of the
Securities of the series is payable; (vi) the rate or rates at which the
Securities of the series shall bear interest, if any, or the method or methods
by which such rates may be determined, if any, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which such interest shall
be payable, the Regular Record Date for the interest payable on any Interest
Payment Date and the basis upon which interest shall be calculated if other than
that of a 360-day year consisting of twelve 30-day months;
(vii) the extent to which any of the Securities will be issuable in temporary or
permanent global form, and in such case, the Depositary for such Global Security
or Securities, the terms and conditions, if any, upon which such Global Security
may be exchanged in whole or in part for definitive securities, and the manner
in which any interest payable on a temporary or permanent Global Security will
be paid, whether or not consistent with Section 3.04 or 3.05;
(viii) the office or offices or agency where, subject to Section 5.02, the
Securities may be presented for registration of transfer or exchange;
(ix) the place or places where, subject to the provisions of Section 5.02, the
principal of (and premium, if any) and interest, if any, on Securities of the
series shall be payable;
(x) the period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of the series may be redeemed, in
whole or in part, at the option of the Company;
(xi) the obligation, if any, of the Company to redeem or purchase Securities of
the series pursuant to any sinking fund or analogous provisions or at the option
of a Holder thereof and the period or periods within which, the price or prices
at which and the terms and conditions upon which Securities of the series shall
be redeemed or purchased, in whole or in part, pursuant to such obligation;
(xii) if other than denominations of $1,000 and any integral multiple thereof,
the denominations in which Registered Securities of the series shall be
issuable; and, if other than $5,000 or any integral multiple thereof, the
denominations in which Bearer Securities of the series shall be issuable;
(xiii) the currency or currencies of denominations of the Securities of any
series, which may be in Dollars, any Foreign Currency or any composite currency,
including but not limited to the ECU, and, if any such currency of denomination
is a composite currency other than the ECU, the agency or organization, if any,
responsible for overseeing such composite currency;
(xiv) the currency or currencies in which payment of the principal of (and
premium, if any) and interest on the Securities will be made, the currency or
currencies, if any, in which payment of the principal of (and premium, if any)
or the interest on Registered Securities, at the election of each of the Holders
thereof, may also be payable and the periods within which and the terms and
conditions upon which such election is to be made and the Exchange Rate and the
Exchange Rate Agent;
22
(xv) if the amount of payments of principal of (and premium, if any) or any
interest on Securities of the series may be determined with reference to an
index, the method or methods by which such amounts shall be determined ;
(xvi) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities or both, whether Securities of the series are to
be issuable with or without coupons or both and, in the case of Bearer
Securities, the date as of which such Bearer Securities shall be dated if other
than the date of original issuance of the first Security of such series of like
tenor and term to be issued;
(xvii) whether, and under what conditions, additional amounts will be payable to
Holders of Securities of the series pursuant to Section 5.04;
(xviii) whether any of the Securities will be issued as Original Issue Discount
Securities;
(xix) information with respect to book-entry procedures, if any; (xx) any
addition to or change in the Events of Default or covenants of the Company
pertaining to the Securities of the series; and
(xxi) any other terms of the series.
All Securities of any one series and the coupons appertaining to Bearer
Securities of such series, if any, shall be substantially identical except, in
the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution and set forth, or
determined in the manner provided in such Officers' Certificate or in any such
indenture supplement hereto.
Securities of any particular series may be issued at various times, with
different dates on which the principal or any installment of principal is
payable, with different rates of interest, if any, or different methods by which
rates of interest may be determined, with different dates on which such interest
may be payable and with different Redemption Dates or Repayment Dates and may be
denominated in different currencies or payable in different currencies.
All Securities shall be subordinate and junior in right of payment to the
obligations of the Company to holders of Senior Indebtedness and creditors in
respect of General Obligations of the Company as provided in Article Fourteen.
SECTION 3.02. Denominations. The Securities of each series shall be issuable in
such form and denominations as shall be specified as contemplated by Section
3.01. In the absence of any specification with respect to the Securities of any
series, the Registered Securities of each series shall be issuable only as
Securities without coupons in denominations of $1,000 and any integral multiple
thereof and the Bearer Securities of each series, if any, shall be issuable with
coupons and in denominations of $5,000 and any integral multiple thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating. The Securities
shall be executed on behalf of the Company by its Chairman of the Board, its
President, a Vice Chairman of the Board, or one of its Vice Presidents and by
its Secretary or one of its Assistant Secretaries. The signatures of any or all
of these officers on the Securities may be manual or facsimile. Coupons shall
bear the facsimile signature of the Company's Chairman of the Board, its
President, a Vice Chairman of the Board or one of its Vice Presidents.
Securities and coupons bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series, together with any
coupons appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee shall, upon receipt of the Company
Order, authenticate and deliver such Securities as in this Indenture provided
and not otherwise; provided, however, that, in connection with its original
issuance, no Bearer Security shall be mailed or otherwise delivered to any
location in the United States; and provided further that a Bearer Security may
be delivered in connection with its original issuance only if the Person
entitled to receive such Bearer Security shall have delivered to the Trustee, or
such other Person as shall be specified in a temporary Global Security delivered
pursuant to Section 3.04, a certificate in the form required by Section 3.11(i).
If the Company shall establish pursuant to Section 3.01 that the Securities of a
series are to be issued in whole or in part in the form of one or more Global
Securities in registered or permanent bearer form, then the Company shall
execute and the Trustee shall, in accordance with this Section and a Company
Order for the authentication and delivery of such Global Securities with respect
to such series, authenticate and deliver one or more Global Securities in
permanent or temporary form that (i) shall represent and shall be denominated in
an aggregate amount equal to the aggregate principal amount of the Outstanding
Securities of such series to be represented by one or more Global Securities,
23
(ii) shall be registered, if in registered form, in the name of the Depositary
for such Global Security or Securities or the nominee of such Depositary and
(iii) shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instructions.
Each Depositary designated pursuant to Section 3.01 for a Global Security in
registered form must, at the time of its designation and at all times while it
serves as Depositary, be a clearing agency registered under the Exchange Act,
and any other applicable statute or regulation.
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 8.01) shall be fully protected in
relying upon, an Opinion of Counsel complying with Section 1.02 and stating
that,
(i) the form of such Securities and coupons, if any, has been established in
conformity with the provisions of this Indenture;
(ii) the terms of such Securities and coupons, if any, or the manner of
determining such terms have been established in conformity with the provisions
of this Indenture;
(iii) that such Securities and coupons, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company, enforceable against the Company in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws of general applicability relating to
or affecting the enforcement of creditors' rights and to general principles of
equity; and
(iv) such other matters as the Trustee may reasonably request.
The Trustee shall not be required to authenticate such Securities if the issue
thereof will adversely affect the Trustee's own rights, duties or immunities
under the Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee. Notwithstanding the provisions of Section
3.01 and of this Section 3.03, if all Securities of a series are not to be
originally issued at one time, it shall not be necessary to deliver the Board
Resolution or Officers' Certificate otherwise required pursuant to Section 3.01
or the Company Order and Opinion of Counsel otherwise required pursuant to this
Section 3.03 at or prior to the time of authentication of each Security of such
series if such documents are delivered at or prior to the authentication upon
original issuance of the first Security of such series to be issued and such
documents reasonably contemplate the issuance of all Securities of such series;
provided that any subsequent request by the Company to the Trustee to
authenticate Securities of such series upon original issuance shall constitute a
representation and warranty by the Company that as of the date of such request,
the statements made in the Officers' Certificate or other certificates delivered
pursuant to Sections 1.02 and 3.01 shall be true and correct as if made on such
date.
A Company Order, Officers' Certificate or Board Resolution or supplemental
indenture delivered by the Company to the Trustee in the circumstances set forth
in the preceding paragraph may provide that Securities which are the subject
thereof will be authenticated and delivered by the Trustee or its agent on
original issue from time to time in the aggregate principal amount, if any,
established for such series pursuant to such procedures acceptable to the
Trustee as may be specified from time to time by Company Order upon the
telephonic, electronic or written order of Persons designated in such Company
Order, Officers' Certificate, supplemental indenture or Board Resolution and
that such Persons are authorized to determine, consistent with such Company
Order, Officers' Certificate, supplemental indenture or Board Resolution, such
terms and conditions of said Securities as are specified in such Company Order,
Officers' Certificate, supplemental indenture or Board Resolution.
Each Registered Security shall be dated the date of its authentication; and
unless otherwise specified as contemplated by Section 3.01, each Bearer Security
and any temporary Global Security referred to in Section 3.04 shall be dated as
of the date of original issuance of such Security.
No Security or coupon appertaining thereto shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose, unless there
appears on such Security a certificate of authentication substantially in the
form provided for herein executed by the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Except as permitted by Section 3.06, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and canceled. Notwithstanding the
foregoing, if any Security or portion thereof shall have been duly authenticated
and delivered hereunder but never issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for cancelation as provided
in Section 3.09 together with a written statement (which need not comply with
Section 1.02 and need not be accompanied by an Opinion of Counsel) stating that
such Security or portion thereof has never been issued and sold by the Company,
for all purposes of this Indenture such Security shall be deemed never to have
been authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 3.04. Temporary Securities. (a) Pending the preparation of definitive
Securities of any series, the Company may execute, and upon Company Order and
the receipt of the certifications and opinions required under Sections 3.01 and
3.03, the Trustee shall
24
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denominations, substantially of the tenor of the definitive Securities in lieu
of which they are issued in registered form or, if authorized, in bearer form
with one or more coupons or without coupons, and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of such
Securities. In the case of any series which may be issuable as Bearer
Securities, such temporary Securities may be in global form, representing such
of the Outstanding Securities of such series as shall be specified therein.
(b) Unless otherwise provided pursuant to Section 3.01:
(i) Except in the case of temporary Securities in global form, each of which
shall be exchanged in accordance with the provisions of the following
paragraphs, if temporary Securities of any series are issued, the Company will
cause definitive Securities of such series to be prepared without unreasonable
delay. After the preparation of definitive Securities, the temporary Securities
of such series shall be exchangeable for definitive Securities of such series
upon surrender of the temporary Securities of such series at the office or
agency of the Company in a Place of Payment for that series, without charge to
the Holder. Upon surrender for cancelation of any one or more temporary
Securities of any series (accompanied, if applicable, by all unmatured coupons
and all matured coupons in default appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of such series of authorized
denominations; provided, however, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; and provided further
that a definitive Bearer Security shall be delivered in exchange for a temporary
Bearer Security only in compliance with the conditions set forth in Section
3.03. Until so exchanged, the temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities of such series.
(ii) If temporary Securities of any series are issued in global form, any such
temporary Global Security shall, unless otherwise provided in such temporary
Global Security, be delivered to the London office of a depositary or common
depositary (the "Common Depositary"), for the benefit of the operator of
Euroclear and CEDEL S.A., for credit to the respective accounts of the
beneficial owners of such Securities (or to such other accounts as they may
direct). Upon receipt of written instructions (which need not comply with
Section 1.02) signed on behalf of the Company by any Person authorized to give
such instructions, the Trustee or any Authenticating Agent shall endorse such
temporary Global Security to reflect the initial principal amount, or an
increase in the principal amount, of Outstanding Securities represented thereby.
Until such initial endorsement, such temporary Global Security shall not
evidence any obligation of the Company. Such temporary Global Security shall at
any time represent the aggregate principal amount of Outstanding Securities
theretofore endorsed thereon as provided above, subject to reduction to reflect
exchanges as described below.
(iii) Unless otherwise specified in such temporary Global Security, and subject
to the second proviso in the following paragraph, the interest of a beneficial
owner of Securities of a series in a temporary Global Security shall be
exchanged for definitive Securities including a definitive Global Bearer
Security) of such series and of like tenor following the Global Exchange Date
(as defined below) when the account holder instructs Euroclear or CEDEL S.A., as
the case may be, to request such exchange on his behalf and delivers to
Euroclear or CEDEL S.A., as the case may be, a certificate in the form required
by Section 3.11(i), dated no earlier than 15 days prior to the Global Exchange
Date, copies of which certificate shall be available from the offices of
Euroclear and CEDEL S.A., the Trustee, any Authenticating Agent appointed for
such series of Securities and each Paying Agent. Unless otherwise specified in
such temporary Global Security, any such exchange shall be made free of charge
to the beneficial owners of such temporary Global Security, except that a Person
receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like in the event that such Person does not take delivery
of such definitive Securities in person at the offices of Euroclear or CEDEL
S.A. Definitive Securities in bearer form to be delivered in exchange for any
portion of a temporary Global Security shall be delivered only outside the
United States.
(iv) Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary Global
Security as the "Global Exchange Date" (the "Global Exchange Date"), the Company
shall deliver to the Trustee, or, if the Trustee appoints an Authenticating
Agent pursuant to Section 8.14, to any such Authenticating Agent, definitive
Securities in aggregate principal amount equal to the principal amount of such
temporary Global Security, executed by the Company. Unless otherwise specified
as contemplated by Section 3.01, such definitive Securities shall be in the form
of Bearer Securities or Registered Securities, or any combination thereof, as
may be specified by the Company, the Trustee or any such Authenticating Agent,
as may be appropriate. On or after the Global Exchange Date, such temporary
Global Security shall be surrendered by the Common Depositary to the Trustee or
any such Authenticating Agent, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge and the Trustee or any such Authenticating Agent shall
authenticate and deliver, in exchange for each portion of such temporary Global
Security, an equal aggregate principal amount of definitive Securities of the
same series, of authorized denominations and of like tenor as the portion of
such temporary Global Security to be exchanged, which, except as otherwise
specified as contemplated by Section 3.01, shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof; provided,
however, that unless otherwise specified in such temporary Global Security, upon
such presentation by the Common Depositary, such temporary Global Security is
accompanied by a certificate dated the Global Exchange Date or a subsequent date
and signed by Euroclear as to the portion of such temporary Global Security held
for its account then to be exchanged and a certificate dated the Global Exchange
Date or a subsequent date and signed by CEDEL S.A., as to the portion of such
25
temporary Global Security held for its account then to be exchanged, each in the
form required by Section 3.11(ii); and provided further that a definitive Bearer
Security (including a definitive global Bearer Security) shall be delivered in
exchange for a portion of a temporary Global Security only in compliance with
the conditions set forth in Section 3.03.
(v) Upon any exchange of a portion of any such temporary Global Security, such
temporary Global Security shall be endorsed by the Trustee or any such
Authenticating Agent, as the case may be, to reflect the reduction of the
principal amount evidenced thereby, whereupon its remaining principal amount
shall be reduced for all purposes by the amount so exchanged. Until so exchanged
in full, such temporary Global Security shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 3.01, interest payable on such temporary Global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Global Exchange Date shall be payable, without interest,
to Euroclear and CEDEL S.A. on or after such Interest Payment Date upon delivery
by Euroclear and CEDEL S.A. to the Trustee or the Paying Agent, as the case may
be, of a certificate or certificates in the form required by Section 3.11(iii),
for credit on or after such Interest Payment Date to the respective accounts of
the Persons who are the beneficial owners of such temporary Global Security on
such Interest Payment Date and who have each delivered to Euroclear or CEDEL
S.A., as the case may be, a certificate in the form required by Section
3.11(iv). Any interest so received by Euroclear and CEDEL S.A. and not paid as
herein provided prior to the Global Exchange Date shall be returned to the
Trustee or Paying Agent, as the case may be, which, upon expiration of two years
after such Interest Payment Date, shall repay such interest on Company Request
in accordance with Section 5.03.
SECTION 3.05. Registration, Registration of Transfer and Exchange. With respect
to Registered Securities, the Company shall keep or cause to be kept a register
(sometimes referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and the registration of transfers of
Registered Securities and the Company shall appoint a "Security Registrar", and
may appoint any "Co-Security Registrar", as may be appropriate, to keep the
Security Register. Such Security Register shall be in written form or in any
other form capable of being converted into written form within a reasonable
time. At all reasonable times the information contained in such Security
Register shall be available for inspection by the Trustee at the office of the
Security Registrar. In the event that any Registered Securities issued hereunder
have the City of New York as a Place of Payment, the Company shall appoint
either a Security Registrar or Co-Security Registrar located in the City of New
York.
Upon surrender for registration of transfer of any Registered Security of any
series at the office or agency of the Company maintained pursuant to Section
5.02 for such purpose in a Place of Payment for such series, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities of
such series of any authorized denominations and of a like aggregate principal
amount, tenor and Stated Maturity.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of such series, of any authorized
denominations and of like aggregate principal amount, tenor and Stated Maturity,
upon surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
The Holder making the exchange is entitled to receive.
Registered Securities may not be exchanged for Bearer Securities.
At the option of the Holder, Bearer Securities of any series may be exchanged
for Registered Securities of the same series of any authorized denominations and
of a like aggregate principal amount and tenor, upon surrender of the Bearer
Securities to be exchanged at any such office or agency, with all unmatured
coupons and all matured coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured coupon or coupons
or matured coupon or coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
in an amount equal to the face amount of such missing coupon or coupons, or the
surrender of such missing coupon or coupons may be waived by the Company and the
Trustee if there be furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to any Paying Agent any such missing
coupon in respect of which such a payment shall have been made, such Holder
shall be entitled to receive the amount of any such payment from the Company;
provided, however, that interest represented by coupons shall be payable only
upon presentation and surrender of those coupons at an office or agency of a
Paying Agent, maintained pursuant to Section 5.02 for such purpose, located
outside the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such office or agency in exchange
for a Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be.
Notwithstanding any other provision of this Section, unless and until it is
exchanged in whole or in part for individual Securities represented thereby, a
Global Security representing all or a portion of the Securities of a series may
not be transferred except as a whole by the Depositary for such series to a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or
26
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.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
If at any time the Depositary for the Securities of a series notifies the
Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
such series shall no longer be eligible under Section 3.03, the Company shall
appoint a successor Depositary with respect to the Securities of such series. If
a successor Depositary for the Securities of such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such ineligibility, the Company's election pursuant to Section 3.01(vi) shall
no longer be effective with respect to the Securities of such series and the
Company will execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver Securities of such series of like tenor and terms in
definitive form in an aggregate principal amount equal to the principal amount
of the Global Security or Securities representing such series in exchange for
such Global Security or Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities. In such
event, the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, will deliver, Securities of such series of like tenor and terms in
definitive form in an aggregate principal amount equal to the principal amount
of the Global Security or Securities representing such series in exchange for
such Global Security or Securities.
If specified by the Company pursuant to Section 3.01 with respect to a series of
Securities, the Depositary for such series of Securities may surrender a Global
Security for such series of Securities in exchange in whole or in part for
Securities of such series of like tenor and terms and in definitive form on such
terms as are acceptable to the Company, the Trustee and such Depositary.
Thereupon, the Company shall execute, and the Trustee upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, shall authenticate and deliver, without service charge:
(a) to the Depositary or to each Person specified by such Depositary a new
Security or Securities of the same series, of like tenor and terms and of any
authorized denomination as requested by such Person in aggregate principal
amount equal to and in exchange for such Person's beneficial interest in the
Global Security; and
(b) to such Depositary a new Global Security of like tenor and terms and in an
authorized denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal amount of
Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three paragraphs, the
Company will execute and the Trustee, pursuant to a Company Order, will
authenticate and deliver, Securities (a) in definitive registered form in
authorized denominations, if the Securities of such series are issuable as
Registered Securities, (b) in definitive bearer form in authorized
denominations, with coupons attached, if the Securities of such series are
issuable as Bearer Securities or (c) as either Registered or Bearer Securities,
if the Securities of such series are issuable in either form; provided, however,
that no definitive Bearer Security shall be delivered in exchange for a
temporary
Global Security other than in accordance with the provisions of Sections 3.03
and 3.04.
Upon the exchange of Global Securities for Securities in definitive form, such
Global Securities shall be canceled by the Trustee. Registered Securities issued
in exchange for a Global Security pursuant to this Section 3.05 shall be
registered in such names and in such authorized denominations, and delivered to
such addresses, as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee in writing. The Trustee shall deliver such Registered
Securities to the Persons in whose names such Securities are so registered or to
the Depositary. The Trustee shall deliver Bearer Securities issued in exchange
for a Global Security pursuant to this Section 3.05 to the Depositary or to the
Persons at such addresses, and in such authorized denominations, as the
Depositary for such Global Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee in writing;
provided, however, that no definitive Bearer Security shall be delivered in
exchange for a temporary Global Security other than in accordance with the
provisions of Sections 3.03 and 3.04.
27
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or exchange
shall (if so required by the Company or the Security Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided in the Securities to be registered for transfer or
exchanged, no service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may (unless otherwise provided in such
Securities) require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges expressly provided in
this Indenture to be made at the Company's own expense or without expense or
without charge to Holders.
Neither the Company, the Security Registrar nor any Co-Security Registrar shall
be required (i) to issue, register the transfer of or exchange any Securities of
any series during a period beginning at the opening of business 15 days before
the day of selection of Securities of such series to be redeemed and ending at
the close of business on (A) if Securities of the series are issuable only as
Registered Securities, the day of the mailing of the relevant notice of
redemption of Registered Securities of such series so selected for redemption or
(B) if Securities of the series are issuable as Bearer Securities, the day of
the first publication of the relevant notice of redemption or, if Securities of
the series are also issuable as Registered Securities and there is no
publication, the mailing of the relevant notice of redemption, or (ii) to
register the transfer or exchange of any Securities or portions thereof so
selected for redemption.
Notwithstanding anything herein to the contrary, the exchange of Bearer
Securities into Registered Securities shall be subject to applicable laws and
regulations in effect at the time of exchange; none of the Company, the Trustee
nor the Security Registrar shall exchange any Bearer Securities into Registered
Securities if it has received an Opinion of Counsel that as a result of such
exchanges the Company would suffer adverse consequences under the United States
federal income tax laws and regulations then in effect and the Company has
delivered to the Trustee a Company Order directing the Trustee not to make such
exchanges unless and until the Trustee receives a subsequent Company Order to
the contrary. The Company shall deliver copies of such Company Orders to the
Security Registrar.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities. If (i) any
mutilated Security or Security with a mutilated coupon is surrendered to the
Trustee or the Security Registrar, or if the Company, the Trustee and the
Security Registrar receive evidence to their satisfaction of the destruction,
loss or theft of any Security or coupon and (ii) there is delivered to the
Company, the Trustee and the Security Registrar such security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice to the Company, the Trustee or the Security Registrar that such Security
has been acquired by a bona fide purchaser, the Company shall execute and upon
its request the Trustee shall authenticate and deliver, in lieu of any such
mutilated, destroyed, lost or stolen Security or in exchange for the Security to
which a mutilated, destroyed, lost or stolen coupon appertains (with all
appurtenant coupons not mutilated, destroyed, lost or stolen), a new Security of
the same series and Stated Maturity and of like tenor and principal amount,
bearing a number not contemporaneously outstanding and, if applicable, with
coupons corresponding to the coupons appertaining thereto; provided, however ,
that any new Bearer Security will be delivered only in compliance with the
conditions set forth in Section 3.05.
In case any such mutilated, destroyed, lost or stolen Security or coupon has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security; provided, however, that
payment of principal of (and premium, if any) and any interest on Bearer
Securities shall be payable only at an office or agency located outside the
United States, and, in the case of interest, unless otherwise specified as
contemplated by Section 3.01, only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with its coupons, if any, issued pursuant to
this Section in exchange for any mutilated Security or in lieu of any destroyed,
lost or stolen Security, or in exchange for a Security with a mutilated,
destroyed, lost or stolen coupon, shall constitute an original additional
contractual obligation of the Company, whether or not the mutilated, destroyed,
lost or stolen Security and its coupons, if any, or the mutilated, destroyed,
lost or stolen coupon shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of the same series and their coupons, if any, duly
issued hereunder.
28
The provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 3.07. Payment of Interest; Interest Rights Preserved. Unless otherwise
provided as contemplated by Section 3.01, interest on any Registered Security
which is payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall unless otherwise provided in such Security be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest. Unless otherwise specified as contemplated by Section 3.01, in case a
Bearer Security of any series is surrendered in exchange for a Registered
Security of such series after the close of business (at an office or agency
referred to in Section 3.05) on any Regular Record Date and before the opening
of business (at such office or agency) on the next succeeding Interest Payment
Date, such Bearer Security shall be surrendered without the coupon relating to
such Interest Payment Date and interest will not be payable on such Interest
Payment Date in respect of the Registered Security issued in exchange for such
Bearer Security, but will be payable only to the Holder of such coupon when due
in accordance with the provisions of this Indenture. At the option of the
Company, payment of interest on any Registered Security may be made by check in
the currency designated for such payment pursuant to the terms of such
Registered Security mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register or by wire transfer to an account
in such currency designated by such Person in writing not later than ten days
prior to the date of such payment.
Any interest on any Registered Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of his having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (i) or clause (ii) below.
(i) The Company may elect to make payments of any Defaulted Interest to the
Persons in whose names any such Registered Securities (or their respective
Predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Registered Security and
the date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 nor less than 10 days prior
to the date of the proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed, first
class, postage prepaid, to each Holder at his address as it appears in the
Security Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been mailed as aforesaid, such Defaulted Interest shall be
paid to the Persons in whose names such Registered Securities (or their
respective Predecessor Securities) are registered on such Special Record Date
and shall no longer be payable pursuant to the following clause (ii). In case a
Bearer Security of any series is surrendered at the office or agency in a Place
of Payment for such series in exchange for a Registered Security of such series
after the close of business at such office or agency on any Special Record Date
and before the opening of business at such office or agency on the related
proposed date of payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date for payment and
Defaulted Interest will not be payable on such proposed date for payment in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
(ii) The Company may make payment of any Defaulted Interest in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Securities with respect to which there exists such default may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to
this clause, such payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security delivered
under this Indenture upon registration of transfer of, or in exchange for, or in
lieu of, any other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
Subject to the limitations set forth in Section 5.02, the Holder of any coupon
appertaining to a Bearer Security shall be entitled to receive the interest
payable on such coupon upon presentation and surrender of such coupon on or
after the Interest Payment Date of such coupon at an office or agency maintained
for such purpose pursuant to Section 5.02.
SECTION 3.08. Persons Deemed Owners. Title to any Bearer Security, any coupons
appertaining thereto and any temporary Global Security shall pass by delivery.
29
Prior to due presentment for registration of transfer of any Registered
Security, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of, premium, if
any, and (subject to Section 3.07) interest on such Security, and for all
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee may treat
the bearer of any Bearer Security and the bearer of any coupon as the absolute
owner of such Security or coupon for the purpose of receiving payment thereof or
on account thereof and for all other purposes whatsoever whether or not such
Security or coupon be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent, any Authenticating Agent or
the Security Registrar will have the responsibility or liability for any aspect
of the records relating to or payments made on account of beneficial ownership
interest of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interest, and they shall be fully
protected in acting or refraining from acting on any such information provided
by the Depositary.
SECTION 3.09. Cancellation. Unless otherwise provided with respect to a series
of Securities, all Securities and coupons surrendered for payment, registration
of transfer, exchange, repayment or redemption shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee. All Securities so
delivered or surrendered directly to the Trustee for any such purpose shall be
promptly cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all Securities
so delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture or such
Securities. All cancelled Securities or coupons held by the Trustee shall be
destroyed by the Trustee and the Trustee shall deliver a certificate of such
destruction to the Company.
SECTION 3.10. Computation of Interest. Interest on the Securities of each series
shall be computed as shall be specified as contemplated by Section 3.01.
SECTION 3.11. Form of Certification. Unless otherwise provided pursuant to
Section 3.01:
(i) Whenever any provision of this Indenture or the forms of Securities
contemplate that certification be given by a Person entitled to receive a Bearer
Security, such certification shall be provided substantially in the form of
Exhibit A hereto, with only such changes as shall be approved by the Company.
(ii) Whenever any provision of this Indenture or the forms of Securities
contemplate that certification be given by Euroclear and CEDEL S.A. in
connection with the exchange of a portion of a temporary Global
Security, such certification shall be provided substantially in the form of
Exhibit B hereto, with only such changes as shall be approved by the Company.
(iii) Whenever any provision of the Indenture or the forms of Securities
contemplate that certification be given by Euroclear and CEDEL S.A. in
connection with payment of interest with respect to a temporary Global Security
prior to the related Global Exchange Date, such certification shall be provided
substantially in the form of Exhibit C hereto, with only such changes as shall
be approved by the Company.
(iv) Whenever any provision of the Indenture or the forms of Securities
contemplate that certification be given by a beneficial owner of a portion of a
temporary Global Security in connection with payment of interest with respect to
a temporary Global Security prior to the related Global Exchange Date, such
certification shall be provided substantially in the form of Exhibit D hereto,
with only such changes as shall be approved by the Company.
SECTION 3.12. Judgments. The Company may provide, pursuant to Section 3.01, for
the Securities of any series that, to the fullest extent possible under
applicable law and except as may otherwise be specified as contemplated in
Section 3.01, (a) the obligation, if any, of the Company to pay the principal of
(and premium, if any) and interest of the Securities of any series and any
appurtenant coupons in a Foreign Currency, composite currency or Dollars (the
"Designated Currency") as may be specified pursuant to Section 3.01 is of the
essence and agrees that judgments in respect of such Securities shall be given
in the Designated Currency; (b) the obligation of the Company to make payments
in the Designated Currency of the principal of (and premium, if any) and
interest on such Securities and any appurtenant coupons shall, notwithstanding
any payment in any other currency (whether pursuant to a judgment or otherwise),
be discharged only to the extent of the amount in the Designated Currency that
the Holder receiving such payment may, in accordance with normal banking
procedures, purchase with the sum paid in such other currency (after any premium
and cost of exchange) in the country of issue of the Designated Currency in the
case of Foreign Currency or Dollars or in the international banking community in
the case of a composite currency on the Business Day immediately following the
day on which such Holder receives such payment; (c) if the amount in the
Designated Currency that may be so purchased for any reason falls short of the
amount originally due, the Company shall pay such additional amounts as may be
necessary to compensate for such shortfall;
30
and (d) any obligation of the Company not discharged by such payment shall be
due as a separate and independent obligation and, until discharged as provided
herein, shall continue in full force and effect.
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 4.01. Applicability of Article. Securities of any series which are
redeemable before their Stated Maturity shall be redeemable in accordance with
their terms and, except as otherwise specified as contemplated by Section 3.01
for Securities of any series, in accordance with this Article.
SECTION 4.02. Election To Redeem; Notice to Trustee. The election of the Company
to redeem any Securities redeemable at the option of the Company shall be
evidenced by an Officers' Certificate. In case of any redemption at the election
of the Company of less than all the Securities of any series, the Company shall,
at least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee and the
Security Registrar of such Redemption Date and of the principal amount of
Securities of such series to be redeemed. In the case of any redemption of
Securities (i) prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, or (ii)
pursuant to an election of the Company which is subject to a condition specified
in the terms of such Securities, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 4.03. Selection by Security Registrar of Securities To Be Redeemed. If
less than all the Securities of any series with the same terms are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Security Registrar from the
Outstanding Securities of such series having such terms not previously called
for redemption, by such method as the Security Registrar shall deem fair and
appropriate and which may provide for the selection for redemption of portions
of the principal amount of Securities of such series of a denomination equal to
or larger than the minimum authorized denomination for Securities of such
series. Unless otherwise provided by the terms of the Securities of any series
so selected for partial redemption, the portions of the principal of Securities
of such series so selected for partial redemption shall be, in the case of
Registered Securities, equal to $1,000 or an integral multiple thereof or, in
the case of Bearer Securities, equal to $5,000 or an integral multiple thereof,
and the principal amount of any such Security which remains outstanding shall
not be less than the minimum authorized denomination for Securities of such
series.
The Security Registrar shall promptly notify the Company, the Trustee and the
Co-Security Registrar, if any, in writing of the Securities selected for
redemption and, in the case of any Security selected for partial redemption, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the case of
any Security redeemed or to be redeemed only in part, to the portion of the
principal of such Security which has been or is to be redeemed.
SECTION 4.04. Notice of Redemption. Notice of redemption shall be given in the
manner provided in Section 1.06, not less than 30 nor more than 60 days prior to
the Redemption Date, to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) if less than all Outstanding Securities of any series having the same
terms are to be redeemed, the identification (and, in the case of partial
redemption, the respective principal amounts) of the particular Securities to be
redeemed;
(iv) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security to be redeemed, and that interest, if any,
thereon shall cease to accrue on and after said date;
(v) the place or places where such Securities, together in the case of Bearer
Securities with all remaining coupons appertaining thereto, if any, maturing
after the Redemption Date, are to be surrendered for payment of the Redemption
Price;
(vi) that the redemption is for a sinking fund, if such is the case; and
(vii) the CUSIP number or the Euroclear or the CEDEL reference number (or any
other number used by a Depositary to identify such Securities), if any, of the
Securities to be redeemed.
31
A notice of redemption published as contemplated by Section 1.06 need not
identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of the Company
shall be given by the Company or, on Company Request, by the Trustee in the name
and at the expense of the Company.
SECTION 4.05. Deposit of Redemption Price. At or prior to the opening of
business on any Redemption Date, the Company shall deposit or cause to be
deposited with the Trustee or with a Paying Agent (or, if the Company is acting
as its own Paying Agent, segregate and hold in trust as provided in Section
5.03) an amount of money sufficient to pay the Redemption Price of all the
Securities which are to be redeemed on that date; provided, however, that
deposits with respect to Bearer Securities shall be made with a Paying Agent or
Paying Agents located outside the United States except as otherwise provided in
Section 5.02, unless otherwise specified as contemplated by Section 3.01.
SECTION 4.06. Securities Payable on Redemption Date. Notice of redemption having
been given as aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified and from and after such date (unless the Company shall default in the
payment of the Redemption Price) such Securities shall cease to bear interest
and the coupons for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. Upon surrender of
any such Securities for redemption in accordance with said notice, such
Securities shall be paid by the Company at the Redemption Price; provided,
however, that installments of interest on Bearer Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 3.01, only upon presentation and surrender
of coupons for such interest. Installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such on the close of business on the relevant Regular Record Dates
according to their terms and the provisions of Section 3.07.
If any Bearer Security surrendered for redemption shall not be accompanied by
all appurtenant coupons maturing after the Redemption Date, such Security may be
paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall surrender
to the Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted; provided, however, that interest
represented by coupons shall be payable only at an office or agency located
outside the United States and, unless otherwise specified as contemplated by
Section 3.01, only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be paid upon surrender thereof
for redemption, the principal shall, until paid, bear interest from the
Redemption Date at the rate borne by such Security, or as otherwise provided in
such Security.
SECTION 4.07. Securities Redeemed in Part. Any Security which is to be redeemed
only in part shall be surrendered at the office or agency of the Company in a
Place of Payment therefor (with, if the Company or the Security Registrar so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder of such Security or his attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series and Stated Maturity, containing identical terms and conditions,
of any authorized denominations as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
SECTION 4.08. Redemption Suspended During Event of Default. The Trustee shall
not redeem any Securities (unless all Securities then Outstanding are to be
redeemed) or commence the giving of any notice of redemption of Securities
during the continuance of any Event of Default known to the Trustee, except that
where the giving of notice of redemption of any Securities shall theretofore
have been made, the Trustee shall, subject to the provisions of Section 14.04,
redeem such Securities, provided funds are deposited with it for such purpose.
Subject to the rights of the holders of Senior Indebtedness and creditors in
respect of General Obligations, except as aforesaid, any moneys theretofore or
thereafter received by the Trustee shall, during the continuance of such Event
of Default, be held in trust for the benefit of the Holders and applied in the
manner set forth in Section 7.06; provided, however, that in case such Event of
Default shall have been waived as provided herein or otherwise cured, such
moneys shall thereafter be held and applied in accordance with the provisions of
this Article.
ARTICLE FIVE
COVENANTS
SECTION 5.01. Payment of Principal, Premium and Interest. The Company covenants
and agrees for the benefit of each series of Securities that it will duly and
punctually pay the principal of, premium, if any, and interest on the Securities
of such series in accordance with the terms of the Securities of such series,
any coupons appertaining thereto and this Indenture. Unless otherwise specified
as contemplated by Section 3.01 with respect to any series of Securities, any
interest due on Bearer Securities on or before
32
Maturity shall be payable only outside the United States upon presentation and
surrender of the several coupons for such interest installments as are evidenced
thereby as they severally mature.
SECTION 5.02. Maintenance of Office or Agency. If Securities of a series are
issuable only as Registered Securities, the Company will maintain in each Place
of Payment for any series of Securities an office or agency where Securities of
that series may be presented or surrendered for payment, where Securities of
that series may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and of any change in the
location, of such office or agency. If Securities of a series may be issuable as
Bearer Securities, the Company will maintain (A) in the Borough of Manhattan,
the City of New York an office or agency where any Registered Securities of that
series may be presented or surrendered for payment, where any Registered
Securities of that series may be surrendered for registration of transfer, where
Securities of that series may be surrendered for exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served, (B) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series which is located outside the
United States, an office or agency where Securities of that series and related
coupons may be presented and surrendered for payment (including payment of any
additional amounts payable on Securities of that series pursuant to Section
5.04); provided, however, that if the Securities of that series are listed on
The International Stock Exchange of the United Kingdom and the Republic of
Ireland Limited or the Luxembourg Stock Exchange or any other stock exchange
located outside the United States and such stock exchange shall so require, the
Company will maintain a Paying Agent for the Securities of that series in London
or Luxembourg or any other required city located outside the United States, as
the case may be, so long as the Securities of that series are listed on such
exchange, and (C) subject to any laws or regulations applicable thereto, in a
Place of Payment for such series located outside the United States an office or
agency where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered for
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and any change in the
location, of any such office or agency. If at any time the Company shall fail to
maintain any such required office or agency in respect of any series of
Securities or shall fail to furnish the Trustee with the address thereof, such
presentations, and surrenders of Securities of that series may be made and
notices and demands may be made or served at the Principal Corporate Trust
Office of the Trustee, except that Bearer Securities of that series and the
related coupons may be presented and surrendered for payment (including payment
of any additional amounts payable on Bearer Securities of that series pursuant
to Section 5.04) at the place specified for the purpose as contemplated by
Section 3.01, and the Company hereby appoints the Trustee as its agent to
receive such respective presentations, surrenders, notices and demands.
Except as otherwise provided in the form of Bearer Security of any particular
series pursuant to the provisions of this Indenture, no payment of principal,
premium or interest on Bearer Securities shall be made at any office or agency
of the Company in the United States or by check mailed to any address in the
United States or by transfer to an account maintained with a bank located in the
United States; provided, however, payment of principal of and any premium and
interest denominated in Dollars (including additional amounts payable in respect
thereof) on any Bearer Security may be made at an office or agency of, and
designated by, the Company located in the United States if (but only if) payment
of the full amount of such principal, premium, interest or additional amounts in
Dollars at all offices outside the United States maintained for the purpose by
the Company in accordance with this Indenture is illegal or effectively
precluded by exchange controls or similar restrictions and the Trustee receives
an Opinion of Counsel that such payment within the United States is legal.
Unless otherwise provided as contemplated by Section 3.01 with respect to any
series of Securities, at the option of the Holder of any Bearer Security or
related coupon, payment may be made by check in the currency designated for such
payment pursuant to the terms of such Bearer Security presented or mailed to an
address outside the United States or by transfer to an account in such currency
maintained by the payee with a bank located outside the United States.
The Company may also from time to time designate one or more other offices or
agencies where the Securities of one or more series may be presented or
surrendered for any or all of such purposes specified above in this Section and
may constitute and appoint one or more Paying Agents for the payment of such
Securities, in one or more other cities, and may from time to time rescind such
designations and appointments; provided, however, that no such designation,
appointment or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency. Unless and until the Company
rescinds one or more such appointments, the Company hereby appoints Citibank,
N.A., as its Paying Agent in the City of New York with respect to all series of
Securities having a Place of Payment in the City of New York.
SECTION 5.03. Money for Security Payments To Be Held in Trust. If the Company
shall at any time act as its own Paying Agent for any series of Securities, it
will, on or before each due date of the principal of, premium, if any, or
interest on any of the Securities of such series and any appurtenant coupons,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal, premium or interest so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided, and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, at or prior to the opening of business on each due date of
the principal of, premium, if any, or interest on any Securities of such series
and any appurtenant
33
coupons, deposit with a Paying Agent a sum sufficient to pay the principal,
premium or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee for any series
of Securities to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee subject to the provisions of this
Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of principal of, premium, if any,
or interest on Securities of such series and any appurtenant coupons in trust
for the benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(ii) give the Trustee notice of any default by the Company (or any other obligor
upon the Securities of such series) in the making of any payment of principal,
premium or interest on the Securities of such series or any appurtenant coupons;
and
(iii) at any time during the continuance of any such default, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held in trust
by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such Paying
Agent, and, upon such payments by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of, premium, if any, or
interest on any Security of any series or any appurtenant coupons and remaining
unclaimed for two years after such principal, premium or interest has become due
and payable shall be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust, and the Holder of such
Security or any coupon appertaining thereto shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in an Authorized Newspaper in each Place of Payment, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 5.04. Additional Amounts. If the Securities of a series provide for the
payment of additional amounts, the Company will pay to the Holder of any
Security of any series or any coupon appertaining thereto additional amounts as
provided therein. Whenever in this Indenture there is mentioned, in any context,
the payment of the principal of (or premium, if any) or interest on, or in
respect of, any Security of any series or payment of any related coupon or the
net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of additional
amounts provided for in this Section to the extent that, in such context,
additional amounts are, were or would be payable in respect thereof pursuant to
the provisions of this Section and express mention of the payment of additional
amounts (if applicable) in any provisions hereof shall not be construed as
excluding additional amounts in those provisions hereof where such express
mention is not made.
If the Securities of a series provide for the payment of additional amounts, at
least 10 days prior to the first Interest Payment Date with respect to that
series of Securities (or if the Securities of that series will not bear interest
prior to Maturity, the first day on which a payment of principal (and premium,
if any) is made), and at least 10 days prior to each date of payment of
principal (and premium, if any) or interest if there has been any change with
respect to the matters set forth in the below-mentioned Officers' Certificate,
the Company will furnish the Trustee and the Company's Principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of (and premium, if any) or interest on the Securities of
that series shall be made to Holders of Securities of that series or any related
coupons who are United States Aliens without withholding for or on account of
any tax, assessment or other governmental charge described in the Securities of
that series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities or coupons and the Company will
pay to the Trustee or such Paying Agent the additional amounts required by this
Section. The Company covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out of
or in connection with actions taken or omitted by any of them in reliance on any
Officers' Certificate furnished pursuant to this Section.
SECTION 5.05. Statement as to Compliance. The Company will deliver to the
Trustee, within 120 days after the end of each fiscal year of the Company, an
Officers' Certificate (provided, however, that one of the signatories of which
shall be the Company's principal executive officer, principal financial officer
or principal accounting officer) stating, as to each signer thereof, that:
34
(i) a review of the activities of the Company during such year and of
performance under this Indenture and under the terms of the Securities has been
made under his supervision; and
(ii) to the best of his knowledge, based on such review, (a) the Company has
fulfilled all its obligations and complied with all conditions and covenants
under this Indenture and under the terms of the Securities throughout such year,
or, if there has been a default in the fulfillment of any such obligation,
condition or covenant specifying each such default known to him and the nature
and status thereof, and (b) no event has occurred and is occurring which is, or
after notice or lapse of time or both would become, a Default, or if such an
event has occurred and is continuing, specifying such event known to him and the
nature and status thereof.
For purposes of this Section, compliance or default shall be determined without
regard to any period of grace or requirement of notice provided for herein.
SECTION 5.06. Maintenance of Corporate Existence, Rights and Franchises. So long
as any of the Securities shall be Outstanding, the Company will do or cause to
be done all things necessary to preserve and keep in full force and effect its
corporate existence, rights and franchises to carry on its business; provided,
however, that nothing in this Section 5.06 shall (i) require the Company to
preserve any such right or franchise if the Board of Directors shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and that the loss thereof is not disadvantageous in any
material respect to the Holders, (ii) prevent any consolidation or merger of the
Company, or any conveyance or transfer of its property and assets substantially
as an entirety to any person, permitted by Article Ten, (iii) prevent the
liquidation or dissolution of the Company after any conveyance or transfer of
its property and assets substantially as an entirety to any person permitted by
Article Ten.
ARTICLE SIX
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 6.01. Company To Furnish Trustee Names and Addresses of Holders. The
Company will furnish or cause to be furnished to the Trustee (i) semiannually,
not more than 10 days after each March 1 and September 1, a list, in such form
as the Trustee may reasonably require, containing all the information in the
possession or control of the Company, any of its Paying Agents (other than the
Trustee) or the Security Registrar, if other than the Trustee, as to the names
and addresses of the Holders of Securities as of the preceding February 15 and
August 15, as the case may be, and (ii) at such other times as the Trustee may
request in writing, within 30 days after receipt by the Company of any such
request, a list of similar form and content as of a date not more than 15 days
prior to the time such list is requested to be furnished; provided, however,
that if and so long as the Trustee is the Security Registrar for Securities of a
series, no such list need be furnished with respect to such Series of
Securities.
SECTION 6.02. Preservation of Information; Communications to Holders.
(i) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Securities contained in the
most recent list furnished to the Trustee as provided in Section 6.01 and the
names and addresses of Holders of Securities received by the Trustee in its
capacity as the Security Registrar, if so acting. The Trustee may destroy any
list furnished to it as provided in Section 6.01 upon receipt of a new list so
furnished.
(ii) If three or more Holders of Securities of any series (hereinafter referred
to as "applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Security of such series
for a period of at least six months preceding the date of such application, and
such application states that the applicants desire to communicate with other
Holders of Securities of such series or with the Holders of all Securities with
respect to their rights under this Indenture or under such Securities and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election, either:
(a) afford such applicants access to the information preserved at the time by
the Trustee in accordance with Section 6.02(i); or
(b) inform such applicants as to the approximate number of Holders of Securities
of such series or all Securities, as the case may be, whose names and addresses
appear in the information preserved at the time by the Trustee in accordance
with Section 6.02(i), and as to the approximate cost of mailing to such Holders
the form of proxy or other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of a Security of such series or all Holders of Securities,
as the case may be, whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section 6.02(i), a copy
of the form of proxy or other communication which is specified in such request,
with reasonable promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the reasonable expenses
of mailing, unless, within five days after such tender, the Trustee shall mail
to such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interests of the Holders
of Securities of such series or all Securities, as the case may be, or would be
in violation of applicable law. Such written
35
statement shall specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the written statement
so filed, shall enter an order refusing to sustain any of such objections or if,
after the entry of an order sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for hearing, that all the
objections so sustained have been met and shall enter an order so declaring, the
Trustee shall mail copies of such material to all such Holders of Securities
with reasonable promptness after the entry of such order and the renewal of such
tender; otherwise, the Trustee shall be relieved of any obligation or duty to
such applicants respecting their application.
(iii) Every Holder of Securities, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee shall be
held accountable by reason of the disclosure of any such information as to the
names and addresses of the Holders of Securities in accordance with Section
6.02(ii), regardless of the source from which such information was derived, and
that the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 6.02(ii).
SECTION 6.03. Reports by Trustee. (i) Within 60 days after May l of each year
commencing with the year 1996, the Trustee shall mail to each Holder reports
concerning the Trustee and its action under the Indenture as may be required
pursuant to the Trust Indenture Act if and to the extent and in the manner
provided pursuant thereto.
(ii) Reports pursuant to this Section shall be transmitted by mail
(1) to all Holders of Registered Securities, as their names and addresses appear
in the Security Register and (2) to such Holders of Bearer Securities as have,
within the two years preceding such transmission, filed their names and
addresses with the Trustee for that purpose, and (3) except in the cases of
reports under Section 313(b)(2) of the Trust Indenture Act, to each Holder of a
Security of any series whose name and address appear in the information
preserved at the time by the Trustee in accordance with Section 6.02(i).
(iii) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each securities exchange upon which any
Securities are listed, and also with the Commission. The Company will notify the
Trustee when any Securities are listed on any securities exchange.
SECTION 6.04. Reports by Company. The Company will:
(i) file with the Trustee, within 15 days after the Company is required to file
the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company
is not required to file information, documents or reports pursuant to either of
said Sections, then it will file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Exchange Act in
respect of a security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations;
(ii) file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(iii) transmit by mail to Holders of Securities, in the manner and to the extent
provided in Section 6.03(ii), within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents and reports required to be
filed by the Company pursuant to paragraphs (i) and
(ii) of this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
ARTICLE SEVEN
REMEDIES
SECTION 7.01. Events of Default. "Event of Default", with respect to any series
of Securities, wherever used herein, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body), unless it is either inapplicable to a
particular series or it is specifically deleted or modified in the supplemental
indenture or Board Resolution under which such series of Securities is issued or
in the form of Security for such series:
(i) the entry of a decree or order by a court having jurisdiction in the
premises granting relief in respect of the Company in an involuntary case under
the Federal Bankruptcy Code, adjudging the Company a bankrupt, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under the Federal Bankruptcy Code or
any other applicable Federal or State bankruptcy, insolvency or similar law, or
appointing a receiver, liquidator, custodian,
36
assignee, trustee, sequestrator (or other similar official) of the Company, or
of substantially all of its properties, or ordering the winding up or
liquidation of its affairs under any such law, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days; or
(ii) the institution by the Company of proceedings to be adjudicated a bankrupt,
or the consent of the Company to the institution of bankruptcy proceedings
against it, or the filing by the Company of a petition or answer or consent
seeking reorganization or relief under the Federal Bankruptcy Code or any other
applicable Federal or State bankruptcy, insolvency or similar law, or the
consent by the Company to the filing of any such petition or to the appointment
of a receiver, liquidator, custodian, assignee, trustee, sequestrator (or other
similar official) of the Company, or of substantially all of its properties
under any such law; or
(iii) any other Event of Default provided with respect to Securities of that
series.
SECTION 7.02. Acceleration of Maturity; Rescission and Annulment. If an Event of
Default with respect to any series of Securities for which there are Securities
Outstanding occurs and is continuing, then, and in every such case, the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of such series may declare the principal of all the Securities of
such series (or, if the Securities of that series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of that series) to be immediately due and payable, by a notice in writing
to the Company (and to the Trustee if given by Holders), and upon any such
declaration the same shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to Securities
of any series has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in principal amount of the Outstanding
Securities of such series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences, and any Event of
Default giving rise to such declaration shall not be deemed to have occurred,
if:
(i) the Company has paid or deposited with the Trustee a sum sufficient to pay:
(a) all overdue installments of interest on all Securities of such series;
(b) the principal of and premium, if any, on any Securities of such series which
have become due otherwise than by such declaration of acceleration and interest
thereon at the rate or rates prescribed therefor by the terms of the Securities
of such series;
(c) to the extent that payment of such interest is lawful, interest upon overdue
installments of interest at the rate or rates prescribed therefor by the terms
of the Securities of such series; and (d) all sums paid or advanced by the
Trustee hereunder and the reasonable compensation, expenses, disbursements and
advances of the Trustee, the Security Registrar, any Paying Agent, and their
agents and counsel and all other amounts due the Trustee under Section 8.07.
(ii) all other Defaults with respect to Securities of that series, other than
the nonpayment of the principal of Securities of that series which have become
due solely by such declaration of acceleration, have been cured or waived as
provided in Section 7.13.
No such recession shall affect any subsequent default or impair any right
consequent thereon.
SECTION 7.03. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(i) default is made in the payment of any installment of interest on any
Security of any series when such interest becomes due and payable and such
default continues for a period of 30 days, or
(ii) default is made in the payment of the principal of or premium, if any, on
any Security of any series at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holder of any such Security or coupon appertaining thereto, if any, the whole
amount then due and payable on any such Security or coupon for principal,
premium, if any, and interest, with interest upon the overdue principal and
premium, if any, and (to the extent that payment of such interest shall be
lawful) upon overdue installments of interest, at the rate or rates prescribed
therefor by the terms of any such Security; and, in addition thereto, such
further amount as shall be sufficient to cover the reasonable costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel and any other amounts due
the Trustee under Section 8.07.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
37
If a Default with respect to any series of Securities occurs and is continuing,
the Trustee may in its discretion proceed to protect and enforce its rights and
the rights of the Holders of Securities of such series by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
SECTION 7.04. Trustee May File Proofs of Claim. In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative to the Company or
any other obligor upon the Securities or the property of the Company or of such
other obligor or their creditors, the Trustee (irrespective of whether the
principal of 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 on the Company for the payment of overdue principal,
premium, if any, or interest) shall be entitled and empowered, by intervention
in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of principal, premium, if
any, and interest owing and unpaid in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel and
any other amounts due the Trustee under Section 8.07) and of the Holders allowed
in such judicial proceeding; and
(ii) to collect and receive any moneys or other property payable or deliverable
on any such claims and to distribute the same, and any receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee, and in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 8.07.
Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Holder of a Security or coupon
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder of a Security or coupon in any such
proceeding.
SECTION 7.05. Trustee May Enforce Claims Without Possession of Securities. All
rights of action and claims under this Indenture or under the Securities of any
series, or coupons (if any) appertaining thereto, may be prosecuted and enforced
by the Trustee without the possession of any of the Securities of such series or
coupons appertaining thereto or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel and
any other amounts due the Trustee under Section 8.07, be for the ratable benefit
of the Holders of the Securities of such series and coupons appertaining thereto
in respect of which such judgment has been recovered.
SECTION 7.06. Application of Money Collected. Any money collected by the Trustee
with respect to a series of Securities pursuant to this Article shall be applied
in the following order, at the date or dates fixed by the Trustee, and, in case
of the distribution of such money on account of principal, premium, if any, or
interest, upon presentation of the Securities of such series or coupons
appertaining thereto, if any, or both, as the case may be, and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 8.07;
SECOND: To the payment of the amounts then due and unpaid upon the Securities of
such series and coupons for principal, premium, if any, and interest, in respect
of which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on Securities of such series and coupons, if any, for principal,
premium, if any, and interest, respectively. The Holders of each series of
Securities denominated in ECU, any other composite currency or a Foreign
Currency and any matured coupons relating thereto shall be entitled to receive a
ratable portion of the amount determined by the Exchange Rate Agent by
converting the principal amount Outstanding of such series of Securities and
matured but unpaid interest on such series of Securities in the currency in
which such series of Securities is denominated into Dollars at the Exchange Rate
as of the date of declaration of acceleration of the Maturity of the Securities;
and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
SECTION 7.07. Limitation on Suits. No Holder of any Security of any series or
any related coupons shall have any right to institute any proceeding, judicial
or otherwise, with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(i) such Holder has previously given written notice to the Trustee of a
continuing Default with respect to Securities of such series;
38
(ii) the Holders of not less than a majority in principal amount of the
Outstanding Securities of such series shall have made written request to the
Trustee to institute proceedings in respect of such Default in its own name as
Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee reasonable indemnity
against the costs, expenses and liabilities to be incurred in compliance with
such request;
(iv) the Trustee for 60 days after its receipt of such notice, request and offer
of indemnity has failed to institute any such proceeding; and
(v) no direction inconsistent with such written request has been given to the
Trustee during such 60-day period by the Holders of a majority in principal
amount of the Outstanding Securities of such series;
it being understood and intended that no one or more Holders of Securities of
such series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holders of Securities of such series or to obtain or to seek
to obtain priority or preference over any other such Holders or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all the Holders of Securities of such series.
The following events shall be "Defaults" with respect to any series of
Securities under this Indenture:
(a) an Event of Default with respect to such series specified in Section 7.01;
or
(b) default in the payment of the principal of or premium, if any, on any
Security of such series at its Maturity; or
(c) default in the payment of any interest upon any Security of such series as
and when the same shall become due and payable, and continuance of such default
for a period of 90 days; or
(d) failure on the part of the Company duly to observe or perform any of the
other covenants or agreements on its part in the Securities of such series or in
this Indenture and continuance of such failure for a period of 90 days after the
date on which written notice of such failure, requiring the Company to remedy
the same and stating that such notice is a "Notice of Default" hereunder, shall
have been given by registered mail to the Company by the Trustee, or to the
Company and the Trustee by the holders of at least 25% in aggregate principal
amount of the Securities of such series at the time Outstanding; or
(e) any other Default provided with respect to Securities of that Series.
SECTION 7.08. Unconditional Right of Holders To Receive Principal, Premium and
Interest. Notwithstanding any other provision in this Indenture, the Holder of
any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of, premium, if any, and
(subject to Section 3.07) interest on such Security or payment of such coupon on
the respective Stated Maturities expressed in such Security or coupon (or, in
the case of redemption or repayment on the Redemption Date or Repayment Date)
and to institute suit for the enforcement of such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 7.09. Restoration of Rights and Remedies. If the Trustee or any Holder
of a Security or coupon has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case the Company, the Trustee and the
Holders shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 7.10. Rights and Remedies Cumulative. Except as otherwise provided with
respect to the replacement or payment of mutilated, lost, destroyed or stolen
Secur-ities or coupons in the last paragraph of Section 3.06, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 7.11. Delay or Omission Not Waiver. No delay or omission of the Trustee
or of any Holder of any Security or coupon to exercise any right or remedy
accruing upon any Default shall impair any such right or remedy or constitute a
waiver of any such Default or an acquiescence therein. Every right and remedy
given by this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
39
SECTION 7.12. Control by Holders. The Holders of a majority in principal amount
of the Outstanding Securities of any series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series; provided that
(i) such direction shall not be in conflict with any rule of law or with this
Indenture,
(ii) the Trustee shall not determine that the action so directed would be
unjustly prejudicial to the Holders not taking part in such direction,
(iii) subject to the provisions of Section 8.01, the Trustee shall have the
right to decline to follow any such direction if the Trustee in good faith
shall, by a Responsible Officer or Officers of the Trustee, determine that the
proceeding so directed would involve the Trustee in personal liability, and
(iv) the Trustee may take any other action deemed proper by the Trustee which is
not inconsistent with such direction.
SECTION 7.13. Waiver of Past Defaults. The Holders of a majority in principal
amount of the Outstanding Securities of any series may on behalf of the Holders
of all the Securities of such series waive any past default hereunder and its
consequences, except a default not theretofore cured
(i) in the payment of the principal of, premium, if any, or interest on any
Security of such series, or
(ii) in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected. Upon any such waiver, such default
shall cease to exist, and any Default or Event of Default arising therefrom
shall be deemed to have been cured, for every purpose of the Securities of such
series under this Indenture; but no such waiver shall extend to any subsequent
or other default or impair any right consequent thereon.
SECTION 7.14. Undertaking for Costs. All parties to this Indenture agree, and
each Holder of any Security by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Company, to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of the Outstanding Securities of any series,
or to any suit instituted by any Holder of Securities or coupons for the
enforcement of the payment of the principal of, premium, if any, or interest on
any Security or payment of any coupon on or after the respective Stated
Maturities expressed in such Security or coupon (or, in the case of redemption
or repayment, on or after the Redemption Date or Repayment Date).
SECTION 7.15. Waiver of Stay or Extension Laws. The Company covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE EIGHT
THE TRUSTEE
SECTION 8.01. Certain Duties and Responsibilities. (i) Except during the
continuance of a Default with respect to any series of Securities:
(a) the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture with respect to Securities of such
series, and no implied covenants or obligations shall be read into this
Indenture against the Trustee with respect to such series; and
(b) in the absence of bad faith on its part, the Trustee may conclusively rely
with respect to such series, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificate 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 as to form to the requirements of the Indenture.
40
(ii) In case a Default with respect to any series of Securities has occurred and
is continuing, the Trustee shall exercise such of the rights and powers vested
in it by this Indenture with respect to such series, 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.
(iii) 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) this Subsection shall not be construed to limit the effect of Subsection (i)
of this Section;
(b) the Trustee shall not be liable for any error or judgment made in good faith
by a Responsible Officer, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; (c) the Trustee shall not be
liable with respect to any action taken, suffered or omitted to be taken by it
in good faith in accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of any series relating to the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the Trustee, under
this Indenture with respect to Securities of such series; and
(d) no provision of this Indenture shall require the Trustee to expend or risk
its own funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably assured
to it.
(iv) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 8.02. Notice of Default. Within 90 days after the occurrence of any
default hereunder with respect to Securities of any series, the Trustee shall
transmit by mail to all Holders of Securities of such series entitled to receive
reports pursuant to Section 6.03(ii) notice of such default hereunder known to
the Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the principal
of, premium, if any, or interest on any Security of such series, or any related
coupons or in the payment of any sinking fund installment with respect to
Securities of 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 and/or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the interests of the
Holders of Securities of such series; and provided further that in the case of
any default of the character specified in Section 7.07(d) with respect to
Securities of such series, no such notice to Holders of Securities of such
series shall be given until at least 90 days after the occurrence thereof. For
the purpose of this Section, the term "default", with respect to Securities of
any series, means any event which is, or after notice or lapse of time, or both,
would become, a Default or an Event of Default with respect to Securities of
such series.
SECTION 8.03. Certain Rights of Trustee. Except as otherwise provided in Section
8.01:
(i) the Trustee may rely and shall be protected in acting or refraining from
acting upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, note or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(ii) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(iii) whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or
omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(iv) the Trustee may consult with counsel and the advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;
(v) the Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Indenture at the request or direction of any of the
Holders pursuant to this Indenture, unless such Holders shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(vi) the Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, security or other
paper or document, but the Trustee, in its discretion, may make further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it shall
be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney and, if so requested to do so by any of the
Holders, at the sole cost and expense of the Holders;
41
(vii) the Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents or attorneys and
the Trustee shall not be responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care by it hereunder; and
(viii) in the event that the Trustee is also acting as Paying Agent,
Authenticating Agent or Security Registrar hereunder, the rights and protections
afforded to the Trustee pursuant to this Article Eight shall also be afforded to
such Paying Agent, Authenticating Agent or Security Registrar.
SECTION 8.04. Not Responsible for Recitals or Issuance of Securities. The
recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 8.05. May Hold Securities. The Trustee, any Authenticating Agent, any
Paying Agent, the Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Securities
and, subject to Sections 8.08 and 8.13, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
SECTION 8.06. Money Held in Trust. Money held by the Trustee in trust hereunder
need not be segregated from other funds except to the extent required by law.
The Trustee shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed in writing with the Company.
SECTION 8.07. Compensation and Reimbursement. The Company agrees
(i) to pay to the Trustee from time to time reasonable compensation for all
services rendered by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust);
(ii) except as otherwise expressly provided herein, to reimburse the Trustee
upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(iii) to indemnify the 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
trust, including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder.
As security for the performance of the obligations of the Company under this
Section the Trustee shall have a lien prior to the Securities upon all property
and funds held or collected by the Trustee as such, except funds held in trust
for the payment of principal of, premium, if any, or interest on particular
Securities.
When the Trustee incurs expenses or renders services in connection with an Event
of Default specified in 7.01, the expenses (including the reasonable fees and
expenses of its counsel) and the compensation for the services are intended to
constitute expenses of administration under any applicable bankruptcy,
insolvency or other similar law.
The obligations of the Company set forth in this Section 8.07 and any lien
arising hereunder shall survive the resignation or removal of any Trustee, the
discharge of the Company's obligations pursuant to Article Eleven of this
Indenture and the termination of this Indenture and the repayment of the
Securities whether at the Stated Maturity or otherwise.
SECTION 8.08. Disqualification; Conflicting Interests. If the Trustee has or
shall acquire a conflicting interest within the meaning of Section 310 of the
Trust Indenture Act, the Trustee shall either eliminate such conflicting
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a
conflicting interest with respect to the Securities of any series by virtue of
being Trustee with respect to the Securities of any particular series of
Securities other than that series.
SECTION 8.09. Corporate Trustee Required; Eligibility. There shall at all times
be a Trustee with respect to each series of Securities hereunder which shall be
a corporation organized and doing business under the laws of the United States
of America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $5,000,000, subject to supervision or examination by Federal or
State authority; provided, however, that if Section 310( a) of the Trust
Indenture Act or the rules and regulations of the Commission under the Trust
Indenture Act at any time permit a corporation organized and doing business
under the laws of any other jurisdiction to serve as trustee of an indenture
qualified under the Trust
42
Indenture Act, this Section 8.09 shall be automatically deemed amended to permit
a corporation organized and doing business under the laws of any such
jurisdiction to serve as Trustee hereunder. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. Neither the Company nor any person directly or
indirectly controlling, controlled by or under common control with the Company
may serve as Trustee. If at any time the Trustee with respect to any series of
Securities shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 8.10. Resignation and Removal; Appointment of Successor. (i) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 8.11.
(ii) The Trustee may resign with respect to any series of Securities at any time
by giving written notice thereof to the Company. If an instrument of acceptance
by a successor Trustee shall not have been delivered to the resigning Trustee
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee with respect to Securities of such series.
(iii) The Trustee may be removed with respect to any series of Securities at any
time by Act of the Holders of a majority in principal amount of the Outstanding
Securities of such series, delivered to the Trustee and to the Company.
(iv) If at any time:
(a) the Trustee shall fail to comply with Section 8.08 with respect to any
series of Securities after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security of such series for at least
six months, or
(b) the Trustee shall cease to be eligible under Section 8.09 with respect to
any series of Securities and shall fail to resign after written request therefor
by the Company or by any Holder of Securities of such series, or
(c) 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 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, (1) the
Company by a Board Resolution may remove the Trustee with respect to such
series, or (2) subject to Section 7.14, any Holder who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee with respect to such series.
(v) If the Trustee shall resign, be removed or become incapable of acting with
respect to any series of Securities, or if a vacancy shall occur in the office
of Trustee with respect to any series of Securities for any cause, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to the Securities of that or those series (it being understood that
any such successor Trustee may be appointed with respect to the Securities of
one or more or all of such series and that at any time there shall be only one
Trustee with respect to the Securities of any particular series) and shall
comply with the applicable requirements of Section 8.11. If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to such series of Securities shall be
appointed by the Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee with respect to such series, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
with respect to such series and to that extent supersede the successor Trustee
appointed by the Company with respect to such series. If no successor Trustee
with respect to such series shall have been so appointed by the Company or the
Holders of Securities of such series and accepted appointment in the manner
hereinafter provided, any Holder who has been A bona fide Holder of a Security
of such series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to such series.
(vi) The Company shall give notice of each resignation and each removal of the
Trustee with respect to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first- class mail, postage prepaid, to the
Holders of Registered Securities of such series as their names and addresses
appear in the Security Register and, if Securities of such series are issuable
as Bearer Securities, by publishing notice of such event once in an Authorized
Newspaper in each Place of Payment located outside the United States. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Principal Corporate Trust
Office.
SECTION 8.11. Acceptance of Appointment by Successor. (i) In the case of the
appointment hereunder of a successor Trustee with respect to any series of
Securities, every such successor Trustee so appointed shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective with respect to all or any series as to which it
is resigning as Trustee, and such successor Trustee, without any
43
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to all or any
such series; but, on request of the Company or such successor Trustee, such
retiring Trustee shall upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of such retiring Trustee with respect to all or any such series; and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder with respect to all or any
such series.
(ii) In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (a) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (b) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (c) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be Trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, subject
nevertheless to its lien, if any, provided for in Section 8.07.
(iii) Upon request of any such successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to in
Paragraph (i) or (ii) of this Section, as the case may be.
(iv) No successor Trustee with respect to a series of Securities shall accept
its appointment unless at the time of such acceptance such successor Trustee
shall be qualified and eligible with respect to such series under this Article.
SECTION 8.12. 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 all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 8.13. Preferential Collection of Claims against Company. If and when the
Trustee shall be or become a creditor of the Company (or any other obligor upon
the Securities), the Trustee shall be subject to the provisions of Section 311
of the Trust Indenture Act regarding the collection of such claims against the
Company (or any such other obligor). A Trustee that has resigned or been removed
shall be subject to and comply with said Section 311 to the extent required
thereby.
SECTION 8.14. Appointment of Authenticating Agents. The Trustee may appoint an
Authenticating Agent or Agents, which may include any Affiliate of the Company,
with respect to one or more series of Securities. Such Authenticating Agent or
Agents at the option of the Trustee shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon original issuance,
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 3.06, and Securities so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Whenever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication or the delivery of Securities to the
Trustee for authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent,
a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent and delivery of Securities to the Authenticating Agent on
behalf of the Trustee. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authen-ticating
Agent, having a combined capital and surplus of not less than $5,000,000 and
subject to supervision or examination by Federal or State authority.
Notwithstanding the foregoing, an Authenticating Agent located outside the
United States may be appointed by the Trustee if previously approved in writing
by the Company and if such Authenticating Agent meets the minimum capitalization
requirements of this Section 8.14. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes of this
Section, the combined capital
44
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which such Authenticating Agent shall be a party,
or any corporation succeeding to the corporate agency or corporate trust
business of an Authenticating Agent, shall continue to be an Authenticating
Agent, provided such corporation shall be otherwise eligible under this Section,
without the execution or filing of any paper or any further act on the part of
the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof
to the Trustee and to the Company. The Trustee may at any time (and upon request
by the Company shall) terminate the agency of an Authenticating Agent by giving
written notice thereof to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such termination, or in case at
any time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
If an appointment with respect to one or more series is made pursuant to this
Section, the Securities of such series may have endorsed thereon, in addition to
the Trustee's certificate of authentication, an alternate certificate of
authentication in the following form:
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
CITIBANK, N.A., as Trustee,
by
AS AUTHENTICATING AGENT
by
AUTHORIZED OFFICER
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders. Without the
consent of any Holder of any Securities or coupons, the Company, when authorized
by a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:
(i) to evidence the succession of another corporation or Person to the Company,
and the assumption by any such successor of the covenants of the Company herein
and in the Securities contained; or
(ii) to evidence and provide for the acceptance of appointment by another
corporation as a successor Trustee hereunder with respect to one or more series
of Securities and to add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to Section 8.11; or
(iii) to add to the covenants of the Company, for the benefit of the Holders of
Securities of all or any series of Securities or coupons (and if such covenants
are to be for the benefit of less than all series of Securities or coupons,
stating that such covenants are expressly being included solely for the benefit
of such series), or to surrender any right or power herein conferred upon the
Company; or
(iv) to cure any ambiguity, to correct or supplement any provision herein which
may be inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under the Indenture;
provided that such action shall not adversely affect the interests of the
Holders of Securities of any series or any related coupons in any material
respect, or
(v) to add any additional Defaults or Events of Default with respect to all or
any series of the Securities (and, if such Default or Event of Default is
applicable to less than all series of Securities, specifying the series to which
such Default or Event of Default is applicable); or
(vi) to add to, change or eliminate any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to change or
eliminate any restrictions on the payment of principal of (or premium, if any)
or any interest on Bearer Securities, to permit Bearer Securities to be issued
in exchange for Registered Securities, to permit Bearer Securities to be issued
in
45
exchange for Bearer Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated form; provided any such
action shall not adversely affect the interests of the Holders of Securities of
any series or any related coupons in any material respect; or
(vii) to add to, change or eliminate any of the provisions of this Indenture,
provided that any such addition, change or elimination (a) shall become
effective only when there is no Security Outstanding of any series created prior
to the execution of such supplemental indenture which is adversely affected by
such change in or elimination of such provision or (b) shall not apply to any
Securities Outstanding; or
(viii) to establish the form or terms of Securities of any series as permitted
by Sections 2.01 and 3.01, or
(ix) to add to or change any provisions of this Indenture to such extent as
shall be necessary to permit or facilitate the issuance of Securities
convertible into other securities; or
(x) to evidence any changes to Section 8.09 as permitted by the terms thereof;
or
(xi) to add to or change or eliminate any provision of this Indenture as shall
be necessary or desirable in accordance with any amendments to the Trust
Indenture Act, provided such action shall not adversely affect the interest of
Holders of Securities of any series or any appurtenant coupons in any material
respect.
SECTION 9.02. Supplemental Indentures With Consent of Holders. With the consent
of the Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities of all series affected by such supplemental indenture or
indentures (acting as one class), by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the rights
of the Holders of Securities of each such series and any related coupons under
this Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security affected thereby;
(i) change the Maturity of the principal of, or the Stated Maturity of any
installment of interest (or premium, if any) on, any Security, or reduce the
principal amount thereof or any premium thereon or the rate of interest thereon,
or change the obligation of the Company to pay additional amounts pursuant to
Section 5.04 (except as contemplated by Section 10.01(i) and permitted by
Section 9.01), or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 7.02, or change the
method of calculating interest thereon or the coin or currency in which any
Security (or premium, if any, thereon) or the interest thereon is payable, or
reduce the minimum rate of interest thereon, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption or repayment, on or after the Redemption
Date or Repayment Date);
(ii) reduce the percentage in principal amount of the Outstanding Securities of
any series, the consent of whose Holders is required for any such supplemental
indenture or the consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or of certain defaults
hereunder and their consequences) provided for in this Indenture or reduce the
requirements of Section 16.04 for a quorum;
(iii) change any obligation of the Company to maintain an office or agency in
the places and for the purposes specified in Section 5.02; or
(iv) modify any of the provisions of this Section or Section 7.13, except to
increase any such percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to approve
the particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures. In executing, or accepting
the additional trusts created by, any supplemental indenture permitted by this
Article or the modifications thereby of the trusts created by this Indenture,
the Trustee shall be entitled to receive, and (subject to Section 8.01) shall be
fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by and
complies with this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, liabilities, duties or immunities under this Indenture or otherwise.
46
SECTION 9.04. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 9.05. Conformity with Trust Indenture Act. Every supplemental indenture
executed pursuant to this Article shall conform to the requirements of the TIA
as then in effect.
SECTION 9.06. Reference in Securities to Supplemental Indentures. Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall, if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities so
modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities.
SECTION 9.07. Subordination Unimpaired. No supplemental indenture executed
pursuant to this Article shall directly or indirectly modify the provisions of
Article Fourteen in any manner which might alter the subordination of the
Securities.
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 10.01. Company May Consolidate, etc., Only on Certain Terms. The Company
shall not consolidate with or merge into any other corporation or convey or
transfer its properties and assets substantially as an entirety to any Person,
unless
(i) the Person formed by such consolidation or into which the Company is merged
or the Person which acquires by conveyance or transfer the properties and assets
of the Company substantially as an entirety shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of,
premium, if any, and interest (including all additional amounts, if any, payable
pursuant to Section 5.04) on all the Securities and the performance of every
covenant of this Indenture on the part of the Company to be performed or
observed;
(ii) immediately after giving effect to such transaction, no Default, and no
event which, after notice or lapse of time, or both, would become a Default,
shall have happened and be continuing; and
(iii) the Company has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel each stating that such consolidation, merger, conveyance or
transfer and such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have been
complied with.
SECTION 10.02. Successor Corporation Substituted. Upon any consolidation or
merger, or any conveyance or transfer of the properties and assets of the
Company substantially as an entirety in accordance with Section 10.01, the
successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein. In the event of any such conveyance or transfer, the
Company as the predecessor corporation shall be relieved of all obligations and
covenants under this Indenture and may be dissolved, wound up and liquidated at
any time thereafter.
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE
SECTION 11.01. Satisfaction and Discharge of Indenture. This Indenture shall
cease to be of further effect (except as to any surviving rights of registration
of transfer or exchange of Securities herein expressly provided for and rights
to receive payments thereon and any right to receive additional amounts, as
provided in Section 5.04), and the Trustee, on receipt of a Company Request and
at the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(i) either
(a) all Securities theretofore authenticated and delivered (other than (1)
coupons appertaining to Bearer Securities surrendered for exchange for
Registered Securities and maturing after such exchange, whose surrender is not
required or has not been waived as provided in Section 3.05, (2) coupons
appertaining to Bearer Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived as provided in Section
4.07, (3) Securities and coupons which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 3.06, and (4) Securities
for whose payment money has theretofore been
47
deposited in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in Section
5.03) have been delivered to the Trustee for cancelation; or
(b) all such Securities not theretofore delivered to the Trustee for cancelation
(1) have become due and payable, or
(2) will become due and payable at their Maturity within one year, or (3) are to
be called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company,
and the Company, in the case of (b) (1), (2) or (3) above, has deposited or
caused to be deposited with the Trustee, as trust funds in trust for the
purpose, an amount (said amount to be immediately due and payable to the
Holders) sufficient to pay and discharge the entire indebtedness on such
Securities and coupons not theretofore delivered to the Trustee for cancelation,
for principal, premium, if any, and interest to the date of such deposit (in the
case of Securities which have become due and payable), or to the Maturity or
Redemption Date, as the case may be;
(ii) the Company has paid or caused to be paid all other sums payable hereunder
by the Company; and
(iii) the Company has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel each stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 8.07 and, if money shall
have been deposited with the Trustee pursuant to subclause (b) of clause (i) of
this Section, the obligations of the Trustee under Section 11.02 and the last
paragraph of Section 5.03 shall survive. The Trustee may give notice at the
Company's expense to the Holders of Securities Outstanding of the immediate
availability of the amount referred to in clause (i) of this Section 11.01.
Funds held pursuant to this Section shall not be subject to the provisions of
Article Fourteen.
SECTION 11.02. Application of Trust Money. Subject to the provisions of the last
paragraph of Section 5.03, all money deposited with the Trustee pursuant to
Section 11.01 shall be held in trust and applied by it, in accordance with the
provisions of the Securities, the coupons, if any, and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent), as the Trustee may determine, to the Persons
entitled thereto, of the principal, premium, if any, and interest for whose
payment such money has been deposited with the Trustee; but such money need not
be segregated from other funds except to the extent required by law.
SECTION 11.03. Reinstatement. If the Trustee or any Paying Agent is unable to
apply any money in accordance with Section 11.02 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture and the Securities shall be revived
and reinstated as though no deposit had occurred pursuant to Section 11.01 until
such time as the Trustee or any Paying Agent is permitted to apply all such
money in accordance with Section 11.02.
ARTICLE TWELVE
Immunity of Incorporators, Stockholders,
OFFICERS AND DIRECTORS
SECTION 12.01. Exemption from Individual Liability. No recourse under or upon
any obligation, covenant or agreement of this Indenture, or of any Security or
coupon, or for any claim based thereon or otherwise in respect thereof, shall be
had against any incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or of any successor corporation, either
directly or through the Company, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise;
it being expressly understood that this Indenture and the obligations issued
hereunder are solely corporate obligations of the Company, and that no such
personal liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors, as such, of the Company or
of any successor corporation, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or coupons or implied therefrom; and that any and all such personal liability,
either at common law or in equity or by constitution or statute, of, and any and
all such rights and claims against, every such incorporator, stockholder,
officer or director, as such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or coupons or implied
therefrom, are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issuance of the
Securities.
48
ARTICLE THIRTEEN
SINKING FUNDS
SECTION 13.01. Applicability of Article. The provisions of this Article shall be
applicable to any sinking fund for the retirement of Securities of a series
except as otherwise specified as contemplated by Section 3.01 for Securities of
such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 13.02. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of Securities of such
series.
SECTION 13.02. Satisfaction of Sinking Fund Payments with Securities. The
Company (i) may deliver Outstanding Securities of a series (other than any
previously called for redemption), together in the case of any Bearer Securities
of such series with all unmatured coupons appertaining thereto and (ii) may
apply as a credit Securities of a series which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 13.03. Redemption of Securities for Sinking Fund. Not less than 60 days
prior to each sinking fund payment date for any series of Securities, the
Company will deliver to the Trustee and the Security Registrar an Officers'
Certificate specifying (i) the amount of the next ensuing sinking fund payment
for that series pursuant to the terms of that series, (ii) the portion thereof,
if any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities of that
series pursuant to Section 13.02, and (iii) that none of such Securities has
theretofore been so credited and stating the basis for such credit, and will
also deliver to the Trustee any Securities to be so delivered. Not less than 30
days before each sinking fund payment date the Security Registrar shall select
the Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 4.03 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner provided in
Section 4.04. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
4.06 and 4.07.
ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
SECTION 14.01. Agreement To Subordinate. The Company, for itself, its successors
and assigns, covenants and agrees, and each Holder of a Security by his
acceptance thereof, likewise covenants and agrees, that the payment of the
principal and premium, if any, and interest on each and all of the Securities is
hereby expressly subordinated, to the extent and in the manner hereinafter set
forth, in right of payment to the prior payment in full of all Senior
Indebtedness and, subject to the provisions of Section 14.09, General
Obligations of the Company.
SECTION 14.02. Distribution on Dissolution, Liquidation and Reorganization;
Subrogation of Securities. Upon any distribution of assets of the Company upon
any dissolution, winding up, liquidation or reorganization of the Company,
whether in bankruptcy, insolvency, reorganization or receivership proceedings or
upon an assignment for the benefit of creditors or any other marshalling of the
assets and liabilities of the Company or otherwise (subject to the power of a
court of competent jurisdiction to make other equitable provision reflecting the
rights conferred in this Indenture upon the Senior Indebtedness and the holders
thereof with respect to the Securities and the Holders thereof (and, upon the
General Obligations and the creditors in respect thereof with respect to the
Securities and the Holders thereof) by a lawful plan of reorganization under
applicable bankruptcy law);
(i) the holders of all Senior Indebtedness shall first be entitled to receive
payment in full in accordance with the terms of such Senior Indebtedness of the
principal thereof, premium, if any, and the interest due thereon (including
interest accruing subsequent to the commencement of any proceeding for the
bankruptcy or reorganization of the Company under any applicable bankruptcy,
insolvency, or similar law now or hereafter in effect) before the Holders of the
Securities are entitled to receive any payment upon the principal of or premium,
if any, or interest on indebtedness evidenced by the Securities;
(ii) any payment or distribution of assets of the Company of any kind or
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 Fourteen, including any such payment or distribution which may be
payable or deliverable by reason of the payment of any other indebtedness of the
Company being subordinated to the payment of the Securities, shall be paid by
the liquidating trustee or agent or other person making such
49
payment or distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of Senior Indebtedness
or their representative or representatives or to the trustee or trustees under
any indenture under which any instruments evidencing any of such Senior
Indebtedness may have been issued, in accordance with the priorities then
existing among holders of Senior Indebtedness for payment of the aggregate
amounts remaining unpaid on account of the principal of and premium, if any, and
interest (including interest accruing subsequent to the commencement of any
proceeding for the bankruptcy or reorganization of the Company under any
applicable bankruptcy, insolvency or similar law now or hereafter in effect) on
the Senior Indebtedness held or represented by each, to the extent necessary to
make payment in full of all Senior Indebtedness remaining unpaid, after giving
effect to any concurrent payment or distribution to the holders of such Senior
Indebtedness; it being understood that if the Holders of Securities shall fail
to file a proper claim in the form required by any proceeding referred to in
this subparagraph (ii) prior to 30 days before the expiration of the time to
file such claim or claims, then the holders of Senior Indebtedness are hereby
authorized to file an appropriate claim or claims for and on behalf of the
Holders of Securities in the form required in any such proceeding (as are the
creditors in respect of General Obligations in the event Section 14.09 is
applicable); and
(iii) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, including any such payment or distribution which may be
payable or deliverable by reason of the payment of any other indebtedness of the
Company being subordinate to the payment of the Securities, shall be received by
the Trustee or Holders of the Securities before all Senior Indebtedness is paid
in full, such payment or distribution shall be held in trust for the benefit of
and shall be paid over to the holders of such Senior Indebtedness or their
representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Senior Indebtedness
may have been issued, ratably as aforesaid, for application to the payment of
all Senior Indebtedness remaining unpaid until all such Senior Indebtedness
shall have been paid in full, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders of the
Securities shall be subrogated (equally and ratably with the holders of all
indebtedness of the Company which by its express terms is subordinated to
indebtedness of the Company to substantially the same extent as the Securities
are subordinated and is entitled to like rights of subrogation) to the rights of
the holders of Senior Indebtedness to receive payments or distributions of cash,
property or securities of the Company applicable to the Senior Indebtedness
until the principal of and premium, if any, and interest on the Securities shall
be paid in full and no such payments or distributions to holders of such Senior
Indebtedness to which the Holders of the Securities would be entitled except for
the provisions hereof of cash, property or securities otherwise distributable to
the Senior Indebtedness shall, as between the Company, its creditors, other than
the holders of Senior Indebtedness and the Holders of the Securities, be deemed
to be a payment by the Company to or on account of the Securities. It is
understood that the provisions of this Article Fourteen 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 Senior Indebtedness (and, in the
case of Section 14.09, the Holders of the Securities, on the one hand, and
creditors in respect of General Obligations) on the other hand. Nothing
contained in this Article Fourteen or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as between the Company, its
creditors, other than the holders of Senior Indebtedness, and the Holders of the
Securities, the obligation of the Company, which is unconditional and absolute
(and which, subject to the rights under this Article Fourteen of the holders of
the Senior Indebtedness and the rights under Section 14.09 of creditors in
respect of General Obligations, is intended to rank equally with all other
general obligations of the Company), to pay to the Holders of the Securities the
principal of, premium, if any, and interest on the Securities as and when the
same shall become due and payable in accordance with their terms or to affect
the relative rights of the Holders of the Securities and creditors of the
Company, other than the holders of the Senior Indebtedness and creditors in
respect of General Obligations, nor shall anything herein or in the Securities
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 Fourteen of the holders of Senior
Indebtedness and under Section 14.09 of creditors in respect of General
Obligations in respect of cash, property or securities of the Company received
upon the exercise of any such remedy. Upon any payment or distribution of assets
of the Company referred to in this Article Fourteen, the Trustee, subject to the
provisions of Section 8.01, and the Holders of the Securities shall be entitled
to rely upon any order or decree of a court of competent jurisdiction in which
such dissolution, winding up, liquidation or reorganization proceedings are
pending or upon a certificate of the liquidating trustee or agent or other
person making any distribution 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 Company and the creditors in respect of General Obligations,
the amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article Fourteen. In
the absence of any such liquidating trustee, agent or other person, the Trustee
shall be entitled to rely upon a written notice by a Person representing himself
to be a holder of Senior Indebtedness (or a trustee or representative on behalf
of such holder) or a creditor in respect of General Obligations as evidence that
such Person is a holder of Senior Indebtedness (or is such a trustee or
representative) or a creditor in respect of General Obligations, as the case may
be. 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 or a creditor in respect of General Obligations, to
participate in any payment or distribution pursuant to this Section or Section
14.09, the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness or General
Obligations held by such Person, as to the extent to which such Person is
entitled to participation in such payment or distribution, and as to other facts
pertinent to the rights of such Person under this Section or Section 14.09, and
if such evidence is not
50
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
The obligations of the Company in respect of the Securities shall rank on a
parity with the Existing Subordinated Indebtedness and any other obligations of
the Company ranking on a parity with the Securities.
With respect to the holders of Senior Indebtedness or creditors in respect of
General Obligations, the Trustee undertakes to perform or to observe only such
of its covenants and obligations as are specifically set forth in this Article,
and no implied covenants or obligations with respect to the holders of Senior
Indebtedness or creditors in respect of General Obligations shall be read into
this Indenture against the Trustee. The Trustee, however, shall not be deemed to
owe any fiduciary duty to the holders of Senior Indebtedness or creditors in
respect of General Obligations, and shall not be liable to any such holders or
creditors if it shall mistakenly pay over or distribute to or on behalf of
Holders of Securities or the Company moneys or assets to which any holders of
Senior Indebtedness or creditors in respect of General Obligations shall be
entitled by virtue of this Article Fourteen.
SECTION 14.03. Payments on Securities Prohibited During Event of Default under
Senior Indebtedness. In the event and during the continuation of any default in
the payment of principal of, or premium, if any, or interest on, any Senior
Indebtedness beyond any applicable period of grace, or in the event that any
event of default with respect to any Senior Indebtedness shall have occurred and
be continuing, or would occur as a result of the payment referred to
hereinafter, permitting the holders of such Senior Indebtedness (or a trustee on
behalf of the holders thereof) to accelerate the maturity thereof, then, unless
and until such default or event of default shall have been cured or waived or
shall have ceased to exist, no payment of principal of, or premium or interest
on the Securities, or in respect of any redemption, retirement, purchase or
other acquisition of any of the Securities, shall be made by the Company.
SECTION 14.04. Payments on Securities Permitted. Nothing contained in this
Indenture or in any of the Securities shall (i) impair, as between the Company
and Holders of Securities, the obligation of the Company to make, or prevent the
Company from making, at any time except as provided in Sections 14.02, 14.03,
14.08 and 14.09, payments of principal of or premium, if any, or interest
(including interest accruing subsequent to the commencement of any proceeding
for the bankruptcy or reorganization of the Company under any applicable
bankruptcy, insolvency or similar law now or hereafter in effect) on the
Securities, as and when the same shall become due and payable in accordance with
the terms of the Securities, (ii) affect the relative rights of the Holders of
the Securities and creditors of the Company other than the holders of the Senior
Indebtedness of the Company and the creditors in respect of General Obligations,
(iii) prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default thereunder, subject
to the rights, if any, under Article Fourteen of the holders of Senior
Indebtedness and the creditors in respect of General Obligations in respect of
cash, property or securities of the Company received upon the exercise of such
remedy, or (iv) prevent the application by the Trustee or any Paying Agent of
any moneys deposited with it hereunder to the payment of or on account of the
principal of or premium, if any, or interest on the Securities or prevent the
receipt by the Trustee or any Paying Agent of such moneys, if, prior to the
second Business Day prior to such deposit, the Trustee or such Paying Agent did
not have written notice of any event prohibiting the making of such deposit by
the Company.
SECTION 14.05. Authorization of Holders to Trustee To Effect Subordination. 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 as provided in this Article Fourteen and appoints
the Trustee his attorney-in-fact for any and all such purposes.
SECTION 14.06. Notice to Trustee. Notwithstanding the provisions of this Article
or any other provisions of this Indenture, neither the Trustee nor any Paying
Agent shall be charged with knowledge of the existence of any Senior
Indebtedness or General Obligations or of any event which would prohibit the
making of any payment of moneys to or by the Trustee or such Paying Agent,
unless and until the Trustee or such Paying Agent shall have received written
notice thereof from the Company or from the holder of any Senior Indebtedness or
from the representative of any such holder or from any creditor in respect of
General Obligations.
SECTION 14.07. Right of Trustee To Hold Senior Indebtedness or General
Obligations. The Trustee shall be entitled to all of the rights set forth in
this Article in respect of any Senior Indebtedness or General Obligation at any
time held by it in its individual capacity to the same extent as any other
holder of such Senior Indebtedness or creditor in respect of such General
Obligation and nothing in this Indenture shall be construed to deprive the
Trustee of any of its rights as such holder or creditor.
SECTION 14.08. Article Fourteen Not To Prevent Defaults or Events of Default.
The failure to make a payment pursuant to the Securities by reason of any
provision in this Article shall not be construed as preventing the occurrence of
a Default or an Event of Default.
SECTION 14.09. Securities To Rank Pari Passu with Existing SUBORDINATED
INDEBTEDNESS; PAYMENT OF PROCEEDS IN CERTAIN CASES. (i) SUBJECT TO the
provisions of this Section and to any provisions established or determined with
respect to Securities of any series pursuant to Section 3.01, the Securities
shall rank pari passu in right of payment with the Existing Subordinated
Indebtedness.
(ii) Upon the occurrence of any of the events specified in the first paragraph
of Section 14.02, the provisions of that Section and the corresponding
provisions of each indenture or other instrument or document establishing or
governing the terms of any Existing
51
Subordinated Indebtedness shall be given effect on a pro rata basis to determine
the amount of cash, property or securities which may be payable or deliverable
as between the holders of Senior Indebtedness, on the one hand, and the Holders
of the Securities and holders of Existing Subordinated Indebtedness, on the
other hand.
(iii) If, after giving effect to the provisions of Section 14.02, and the
respective corresponding provisions of each indenture or other instrument or
document establishing or governing the terms of any Existing Subordinated
Indebtedness on such pro rata basis, any amount of cash, property or securities
shall be available for payment or distribution in respect of the Securities
("Excess Proceeds"), and any creditors in respect of General Obligations shall
not have received payment in full of all amounts due or to become due on or in
respect of such General Obligations (and provision shall not have been made for
such payment in money or money's worth), then such Excess Proceeds shall first
be applied (ratably with any amount of cash, property or securities available
for payment or distribution in respect of any other indebtedness of the Company
that by its express terms provides for the payment over of amounts corresponding
to Excess Proceeds to creditors in respect of General Obligations) to pay or
provide for the payment of the General Obligations remaining unpaid, to the
extent necessary to pay all General Obligations in full, after giving effect to
any concurrent payment or distribution to or for creditors in respect of General
Obligations. Any Excess Proceeds remaining after payment (or provision for
payment) in full of all General Obligations shall be available for payment or
distribution in respect of the Securities.
(iv) In the event that, notwithstanding the foregoing provisions of subsection
(iii) of this Section, the Trustee or Holder of any Security shall, in the
circumstances contemplated by such subsection, have received any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, before all General Obligations are paid in full or
payment thereof duly provided for, and if such fact shall, at or prior to the
time of such payment or distribution have been made known to the Trustee or, as
the case may be, such Holder, then and in such event, subject to any obligation
that the Trustee or such Holder may have pursuant to Section 14.02, such payment
or distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
Person making payment or distribution of assets of the Company for payment in
accordance with subsection (iii).
(v) Subject to the payment in full of all General Obligations, the Holder of the
Securities shall be subrogated (equally and ratably with the holders of all
indebtedness of the Company that by its express terms provides for the payment
over of amounts corresponding to Excess Proceeds to creditors in respect of
General Obligations and is entitled to like rights of subrogation) to the rights
of the creditors in respect of General Obligations to receive payments or
distributions of cash, property or securities applicable to the General
Obligations until the principal of and interest on the Securities shall be paid
in full. For purposes of such subrogation, no payments or distributions to
creditors in respect of General Obligations of any cash, property or securities
to which Holders of the Securities or the Trustee would be entitled except for
the provisions of this Section, and no payments over pursuant to the provisions
of this Section to creditors in respect of General Obligations by Holders of
Securities or the Trustee, shall, as among the Company, its creditors (other
than creditors in respect of General Obligations) and the Holders of Securities
be deemed to be a payment or distribution by the Company to or on account of the
Securities.
(vi) The provisions of subsections (iii), (iv) and (v) of this Section 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 creditors in respect of
General Obligations, on the other hand, after giving effect to the rights of the
holders of Senior Indebtedness, as provided in this Article. Nothing contained
in subsections (iii), (iv) and (v) of this Section is intended to or shall
affect the relative rights against the Company of the Holders of the Securities
and (a) the holders of Senior Indebtedness (b) the holders of Existing
Subordinated Indebtedness or (c) other creditors of the Company other than
creditors in respect of General Obligations.
ARTICLE FIFTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 15.01. Applicability of Article. Securities of any series which are
repayable at the option of the Holders thereof before their Stated Maturity
shall be repaid in accordance with their terms and (except as otherwise
specified pursuant to Section 3.01 for Securities of such series) in accordance
with this Article.
SECTION 15.02. Repayment of Securities. Each Security which is subject to
repayment in whole or in part at the option of the Holder thereof on a Repayment
Date shall be repaid at the applicable Repayment Price together with interest
accrued to such Repayment Date as specified pursuant to Section 3.01.
SECTION 15.03. Exercise of Option; Notice. Each Holder desiring to exercise such
Holder's option for repayment shall, as conditions to such repayment, surrender
the Security to be repaid in whole or in part together with written notice of
the exercise of such option at any office or agency of the Company in a Place of
Payment, not less than 30 nor more than 45 days prior to the Repayment Date;
provided, however, that surrender of Bearer Securities together with written
notice of exercise of such option shall be made at an office or agency located
outside the United States except as otherwise provided in Section 5.02. Such
notice, which shall be irrevocable, shall specify the principal amount of such
Security to be repaid, which shall be equal to the minimum authorized
52
denomination for such Security or an integral multiple thereof, and shall
identify the Security to be repaid and, in the case of a partial repayment of
the Security, shall specify the denomination or denominations of the Security or
Securities of the same series to be issued to the Holder for the portion of the
principal of the Security surrendered which is not to be repaid.
If any Bearer Security surrendered for repayment shall not be accompanied by all
unmatured coupons and all matured coupons in default, such Bearer Security may
be paid after deducting from the Repayment Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Bearer Security shall
surrender to the Trustee or any Paying Agent any such missing coupon in respect
of which a deduction shall have been made from the Repayment Price, such Holder
shall be entitled to receive the amount so deducted without interest thereon;
provided, however, that interest represented by coupons shall be payable only at
an office or agency located outside the United States except as otherwise
provided in Section 5.02.
The Company shall execute and the Trustee shall authenticate and deliver without
service charge to the Holder of any Registered Security so surrendered a new
Registered Security or Securities of the same series and tender of any
authorized denomination specified in the foregoing notice, in an aggregate
principal amount equal to any portion of the principal of the Registered
Security so surrendered which is not to be repaid.
The Company shall execute and the Trustee shall authenticate and deliver without
service charge to the Holder of any Bearer Security so surrendered a new
Registered Security or Securities or new Bearer Security or Securities (and all
appurtenant unmatured coupons and matured coupons in default) or any combination
thereof of the same series and tenor of any authorized denomination or
denominations specified in the foregoing notice, in an aggregate principal
amount equal to any portion of the principal of the Security so surrendered
which is not to be repaid; provided, however, that the issuance of a Registered
Security therefor shall be subject to applicable laws and regulations, including
provisions of the United States federal income tax laws and regulations in
effect at the time of the exchange; neither the Company, the Trustee nor the
Security Registrar shall issue Registered Securities for Bearer Securities if it
has received an Opinion of Counsel that as a result of such issuance the Company
would suffer adverse consequences under the United States federal income tax
laws then in effect and the Company has delivered to the Trustee a Company Order
directing the Trustee not to make such issuances thereafter unless and until the
Trustee receives a subsequent Company Order to the contrary. The Company shall
deliver copies of such Company Order to the Security Registrar.
For all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the repayment of Securities shall relate, in the case of
any Security repaid or to be repaid only in part, to the portion of the
principal of such Security which has been or is to be repaid.
SECTION 15.04. Election of Repayment by Remarketing Entities. The Company may
elect, with respect to Securities of any series which are repayable at the
option of the Holders thereof before their Stated Maturity, at any time prior to
any Repayment Date to designate one or more Remarketing Entities to purchase, at
a price equal to the Repayment Price, Securities of such series from the Holders
thereof who give notice and surrender their Debt Securities in accordance with
Section 15.03.
SECTION 15.05. Securities Payable on the Repayment Date. Notice of exercise of
the option of repayment having been given and the Securities so to be repaid
having been surrendered as aforesaid, such Securities shall, unless purchased in
accordance with Section 15.04, on the Repayment Date become due and payable at
the price therein specified and from and after the Repayment Date such
Securities shall cease to bear interest and shall be paid on the Repayment Date,
and the coupons for such interest appertaining to Bearer Securities so to be
repaid, except to the extent provided above, shall be void, unless the Company
shall default in the payment of such price, in which case the Company shall
continue to be obligated for the principal amount of such Securities and shall
be obligated to pay interest on such principal amount at the rate prescribed
therefor by such Securities from time to time until payment in full of such
principal amount.
ARTICLE SIXTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 16.01. Purposes for Which Meetings May Be Called. If Securities of a
series are issuable in whole or in part as Bearer Securities, a meeting of
Holders of Securities of such series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other Act provided by this
Indenture to be made, given or taken by Holders of Securities of such series.
SECTION 16.02. Call, Notice and Place of Meetings. (i) The Trustee may at any
time call a meeting of Holders of Securities of any series issuable as Bearer
Securities for any purpose specified in Section 16.01, to be held at such time
and at such place in the City of Columbus, Ohio, the Borough of Manhattan, The
City of New York, or in London as the Trustee shall determine. Notice of every
meeting of Holders of Securities of any series, setting forth the time and the
place of such meeting and in general terms the action proposed to be taken at
such meeting, shall be given, in the manner provided in Section 1.06, not less
than 21 nor more than 180 days
53
prior to the date fixed for the meeting.
(ii) In case at any time the Company, pursuant to a Board Resolution, or the
Holders of at least 10% in principal amount of the Outstanding Securities of any
series shall have requested the Trustee to call a meeting of the Holders of
Securities of such series for any purpose specified in Section 16.01, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the City
of Columbus, Ohio, the Borough of Manhattan, The City of New York, or in London
for such meeting and may call such meeting for such purposes by giving notice
thereof as provided in subsection (i) of this Section.
SECTION 16.03. Persons Entitled To Vote at Meetings. To be entitled to vote at
any meeting of Holders of Securities of any series, a Person shall be (1) a
Holder of one or more Outstanding Securities of such series, or (2) a Person
appointed by an instrument in writing as proxy for a Holder or Holders of one or
more Outstanding Securities of such series by such Holder or Holders. The only
Persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 16.04. Quorum, Action. The Persons entitled to vote a majority in
principal amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such series; provided, however,
that if any action is to be taken at such meeting with respect to a consent or
waiver which this Indenture expressly provides may be given by the Holders of a
greater percentage in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote such greater percentage in principal amount
of the Outstanding Securities of such series shall constitute a quorum. In the
absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of Securities
of such series, be dissolved. In the absence of a quorum in any other case the
meeting may be adjourned for a period of not less than 10 days as determined by
the chairman of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may be
further adjourned for a period of not less than 10 days as determined by the
chairperson of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided in
Section 16.02(i), except that such notice need be given only once not less than
five days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum. Except as limited by
the provisos to Section 9.02, any resolution presented to a meeting or adjourned
meeting duly reconvened at which a quorum is present as aforesaid may be adopted
only by the affirmative vote of the Holders of a majority in principal amount of
the Outstanding Securities of the series; provided, however, that, except as
limited by the provisos to Section 9.02, any resolution with respect to any
consent or waiver which this Indenture expressly provides may be given by the
Holders of a greater percentage in principal amount of the Outstanding
Securities of a series may be adopted at a meeting or an adjourned meeting duly
reconvened and at which a quorum is present as aforesaid only by the affirmative
vote of the Holders of such greater percentage in principal amount of the
Outstanding Securities of that series; and provided further that, except as
limited by the provisos to Section 9.02, any resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver or other Act
which this Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage, which is less than a majority in principal
amount of the Outstanding Securities of a series may be adopted at a meeting or
an adjourned meeting duly reconvened and at which a quorum is present as
aforesaid by the affirmative vote of the Holders of such specified percentage in
principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of Securities
of any series duly held in accordance with this Section shall be binding on all
the Holders of Securities of such series and the related coupons, whether or not
present or represented at the meeting.
SECTION 16.05. Determination of Voting Rights; Conduct and Adjournment of
Meetings. (a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of such series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section
1.04 and the appointment of any proxy shall be proved in the manner specified in
Section 1.04 or, in the case of Bearer Securities, by having the signature of
the person executing the proxy witnessed or guaranteed by any trust company,
bank or banker authorized by Section 1.04 to certify to the holding of Bearer
Securities. Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine without the
proof specified in Section 1.04 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairperson of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 16.02(ii), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairperson. A
permanent
54
chairperson and a permanent secretary of the meeting shall be elected by vote of
the Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall be
entitled to one vote for each $1,000 principal amount (or the equivalent in ECU,
any other composite currency or a Foreign Currency) of Securities of such series
held or represented by him; provided, however, that no vote shall be cast or
counted at any meeting in respect of any Security challenged as not Outstanding
and ruled by the chairperson of the meeting not to be Outstanding. The
chairperson of the meeting shall have no right to vote, except as a Holder of a
Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called pursuant to
Section 16.02 at which a quorum is present may be adjourned from time to time by
Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting; and the meeting may be
held as so adjourned without further notice.
SECTION 16.06. Counting Votes and Recording Action of Meetings. The vote upon
any resolution submitted to any meeting of Holders of Securities of any series
shall be by written ballots on which shall be subscribed the signatures of the
Holders of Securities of such series or of their representatives by proxy and
the principal amounts and serial numbers of the Outstanding Securities of such
series held or represented by them. The permanent chairperson of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in triplicate of all
votes cast at the meeting. A record, at least in triplicate, of the proceedings
of each meeting of Holders of Securities of any series shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was given as
provided in Section 16.02 and, if applicable, Section 16.04. Each copy shall be
signed and verified by the affidavits of the permanent chairperson and secretary
of the meeting and one such copy shall be delivered to the Company, and another
to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
ARTICLE SEVENTEEN
MISCELLANEOUS
SECTION 17.01. 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.
Citibank, N.A. hereby accepts the trusts in this Indenture declared and
provided, upon the terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
BANC ONE CORPORATION,
by
Attest:
________________________ [CORPORATE SEAL]
Assistant Secretary
CITIBANK, N.A. as Trustee,
by _______________________
Attest:
________________________
Assistant Secretary
55
|
) ss.:
COUNTY OF [ ] )
On this day of 1995, before me personally came to me known, , who, being by me
duly sworn, did depose and say that he resides at []; THAT HE IS [ ] OF BANC ONE
CORPORATION, ONE OF THE corporations described in and which executed the
foregoing 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.
Notary Public
[Notarial Seal]
STATE OF NEW YORK, ) ) ss.:
COUNTY OF NEW YORK,)
On this day of 1995, before me personally appeared , to me known, who, being by
me duly sworn, did depose and say that he resides at ; that he is a of CITIBANK,
N.A., one of the parties described in and which executed the foregoing
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.
Notary Public
[Notarial Seal]
56
Exhibit 4.12(a)
FIRST CHICAGO NBD CORPORATION
AND
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
TRUSTEE
Indenture
Dated as of December 1, 1995
SUBORDINATED DEBT SECURITIES
TABLE OF CONTENTS*
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
PAGE
----
SECTION 1.01. Definitions.................................................. 11
"this Indenture" and certain other terms..................... 11
"Act"........................................................ 11
"Affiliate".................................................. 12
"Authenticating Agent"....................................... 12
"Authorized Newspaper"....................................... 12
"Authorized Officer"......................................... 12
"Bank"....................................................... 12
"Bearer Security"............................................ 12
"Board of Directors"......................................... 12
"Board Resolution"........................................... 12
"Business Day"............................................... 12
"CEDEL; CEDEL S.A.".......................................... 12
"Commission"................................................. 12
"Common Stock"............................................... 12
"Common Depositary".......................................... 12
"Company".................................................... 12
"Company Request" and "Company Order"........................ 13
"corporation"................................................ 13
"Co-Security Register"....................................... 13
"coupon"..................................................... 13
"Default".................................................... 13
"Defaulted Interest"......................................... 13
"Depositary"................................................. 13
"Designated Currency"........................................ 13
"Dollar"..................................................... 13
"ECU"........................................................ 13
"Euroclear".................................................. 13
"European Communities"....................................... 13
"Event of Default"........................................... 13
"Exchange Rate".............................................. 13
"Exchange Rate Agent"........................................ 13
"Exchange Rate Officer's Certificate"........................ 13
"Existing Subordinated Indebtedness"......................... 13
"Foreign Currency"........................................... 14
"General Obligations"........................................ 14
"Global Exchange Date"....................................... 14
"Global Security"............................................ 14
"Holder"..................................................... 14
"interest"................................................... 14
"Interest Payment Date"...................................... 14
"Maturity"................................................... 14
"Officers' Certificate"...................................... 14
"Opinion of Counsel"......................................... 15
|
*This table of Contents is not part of the Indenture.
Page 2
PAGE
----
"Original Issue Discount Security"........................... 15
"Outstanding"................................................ 15
"Paying Agent"............................................... 15
"Person"..................................................... 15
"Place of Payment"........................................... 15
"Predecessor Security"....................................... 15
"Principal Corporate Trust Office"........................... 15
"Principal Paying Agent"..................................... 16
"Redemption Date"............................................ 16
"Redemption Price"........................................... 16
"Registered Security"........................................ 16
"Regular Record Date"........................................ 16
"Remarketing Entity"......................................... 16
"Repayment Date"............................................. 16
"Repayment Price"............................................ 16
"Responsible Officer"........................................ 16
"Security" or "Securities"................................... 16
"Security Register".......................................... 16
"Security Registrar"......................................... 16
"Senior Indebtedness"........................................ 16
"Special Record Date"........................................ 16
"Stated Maturity"............................................ 17
"Subsidiary of the Company" or "Subsidiary".................. 17
"Trustee".................................................... 17
"Trust Indenture Act" or "TIA"............................... 17
"United States".............................................. 17
"United States Alien"........................................ 17
"Vice President"............................................. 17
SECTION 1.02. Compliance Certificates and Opinions......................... 17
SECTION 1.03. Form of Documents Delivered to Trustee....................... 18
SECTION 1.04. Acts of Holders.............................................. 18
SECTION 1.05. Notices, etc., to Trustee and Company........................ 20
SECTION 1.06. Notices to Holders; Waiver................................... 20
SECTION 1.07. Language of Notices, Etc..................................... 21
SECTION 1.08. Conflict with Trust Indenture Act............................ 21
SECTION 1.09. Effect of Headings and Table of Contents..................... 21
SECTION 1.10. Successors and Assigns....................................... 21
SECTION 1.11. Separability Clause.......................................... 21
SECTION 1.12. Benefits of Indenture........................................ 21
SECTION 1.13. Legal Holidays............................................... 21
SECTION 1.14. Governing Law................................................ 22
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Forms Generally.............................................. 22
SECTION 2.02. Form of Securities........................................... 22
|
Page 3
PAGE
----
SECTION 2.03. Form of Trustee's Certificate of Authentication.............. 23
SECTION 2.04. Global Securities............................................ 23
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Title and Terms.............................................. 23
SECTION 3.02. Denominations................................................ 25
SECTION 3.03. Execution, Authentication, Delivery and Dating............... 25
SECTION 3.04. Temporary Securities......................................... 27
SECTION 3.05. Registration, Registration of Transfer and Exchange.......... 29
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities............. 32
SECTION 3.07. Payment of Interest; Interest Rights Preserved............... 32
SECTION 3.08. Persons Deemed Owners........................................ 34
SECTION 3.09. Cancellation................................................. 34
SECTION 3.10. Computation of Interest...................................... 34
SECTION 3.11. Forms of Certification....................................... 34
SECTION 3.12. Judgments.................................................... 35
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 4.01. Applicability of Article..................................... 35
SECTION 4.02. Election to Redeem; Notice to Trustee........................ 35
SECTION 4.03. Selection by Security Registrar of Securities
to be Redeemed.............................................. 36
SECTION 4.04. Notice of Redemption......................................... 36
SECTION 4.05. Deposit of Redemption Price.................................. 37
SECTION 4.06. Securities Payable on Redemption Date........................ 37
SECTION 4.07. Securities Redeemed in Part.................................. 37
SECTION 4.08. Redemption Suspended During Event of Default................. 37
ARTICLE FIVE
COVENANTS
SECTION 5.01. Payment of Principal, Premium and Interest................... 38
SECTION 5.02. Maintenance of Office or Agency.............................. 38
SECTION 5.03. Money for Security Payments to Be Held in Trust.............. 39
SECTION 5.04. Additional Amounts........................................... 40
SECTION 5.05. Statement as to Compliance................................... 41
SECTION 5.06. Maintenance of Corporate Existence, Rights and Franchises.... 41
|
Page 4
ARTICLE SIX
HOLDERS' LISTS AND REPORTS
BY TRUSTEE AND COMPANY
PAGE
----
SECTION 6.01. Company to Furnish Trustee Names and Addresses of Holders.... 41
SECTION 6.02. Preservation of Information; Communications to Holders....... 42
SECTION 6.03. Reports by Trustee........................................... 42
SECTION 6.04. Reports by Company........................................... 43
ARTICLE SEVEN
REMEDIES
SECTION 7.01. Events of Default............................................ 43
SECTION 7.02. Acceleration of Maturity; Rescission and Annulment........... 44
SECTION 7.03. Collection of Indebtedness and Suits for
Enforcement by Trustee...................................... 44
SECTION 7.04. Trustee May File Proofs of Claim............................. 45
SECTION 7.05. Trustee May Enforce Claims Without Possession
of Securities............................................... 46
SECTION 7.06. Application of Money Collected............................... 46
SECTION 7.07. Limitation on Suits.......................................... 46
SECTION 7.08. Unconditional Right of Holders to Receive
Principal, Premium and Interest............................. 47
SECTION 7.09. Restoration of Rights and Remedies........................... 47
SECTION 7.10. Rights and Remedies Cumulative............................... 47
SECTION 7.11. Delay or Omission Not Waiver................................. 47
SECTION 7.12. Control by Noteholders....................................... 48
SECTION 7.13. Waiver of Past Defaults...................................... 48
SECTION 7.14. Undertaking for Costs........................................ 48
SECTION 7.15. Waiver of Stay or Extension Laws............................. 48
ARTICLE EIGHT
THE TRUSTEE
SECTION 8.01. Certain Duties and Responsibilities.......................... 49
SECTION 8.02. Notice of Default............................................ 49
SECTION 8.03. Certain Rights of Trustee.................................... 50
SECTION 8.04. Not Responsible for Recitals or Issuance of Notes............ 50
SECTION 8.05. May Hold Securities.......................................... 51
SECTION 8.06. Money Held in Trust.......................................... 51
SECTION 8.07. Compensation and Reimbursement............................... 51
SECTION 8.08. Disqualification; Conflicting Interests...................... 51
|
Page 5
PAGE
----
SECTION 8.09. Corporate Trustee Required; Eligibility...................... 52
SECTION 8.10. Resignation and Removal; Appointment of Successor............ 52
SECTION 8.11. Acceptance of Appointment by Successor....................... 53
SECTION 8.12. Merger, Conversion, Consolidation or
Succession to Business of Trustee........................... 54
SECTION 8.13. Preferential Collection of Claims against Company............ 54
SECTION 8.14. Appointment of Authenticating Agents......................... 54
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders........... 56
SECTION 9.02. Supplemental Indentures With Consent of Holders.............. 56
SECTION 9.03. Execution of Supplemental Indentures......................... 57
SECTION 9.04. Effect of Supplemental Indentures............................ 57
SECTION 9.05. Conformity with Trust Indenture Act.......................... 57
SECTION 9.06. Reference in Securities to Supplemental Indentures........... 58
SECTION 9.07. Subordination Unimpaired..................................... 58
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 10.01. Company May Consolidate, etc., Only on Certain Terms......... 58
SECTION 10.02. Successor Corporation Substituted............................ 58
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE
SECTION 11.01. Satisfaction and Discharge of Indenture...................... 59
SECTION 11.02. Application of Trust Money................................... 59
SECTION 11.03. Reinstatement................................................ 60
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Exemption from Individual Liability.......................... 60
ARTICLE THIRTEEN
SINKING FUNDS
SECTION 13.01. Applicability of Article..................................... 60
SECTION 13.02. Satisfaction of Sinking Fund Payments with
Securities.................................................. 61
SECTION 13.03. Redemption of Securities for Sinking Fund.................... 61
|
Page 6
ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
PAGE
----
SECTION 14.01. Agreement to Subordinate..................................... 61
SECTION 14.02. Distribution on Dissolution, Liquidation and
Reorganization; Subrogation of Securities................... 61
SECTION 14.03. Payments on Securities Prohibited During Event
of Default under Senior Indebtedness........................ 63
SECTION 14.04. Payments on Securities Permitted............................. 64
SECTION 14.05. Authorization of Holders to Trustee to Effect
Subordination............................................... 64
SECTION 14.06. Notice to Trustee............................................ 64
SECTION 14.07. Right of Trustee to Hold Senior Indebtedness
or General Obligations...................................... 64
SECTION 14.08. Article Fourteen Not to Prevent Defaults or 64
Events of Default...........................................
SECTION 14.09. Securities to Rank Pari Passu with Existing
Subordinated Indebtedness; Payment of
Proceeds in Certain Cases................................... 64
ARTICLE FIFTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 15.01. Applicability of Article..................................... 66
SECTION 15.02. Repayment of Securities...................................... 66
SECTION 15.03. Exercise of Option; Notice................................... 66
SECTION 15.04. Election of Repayment by Remarketing Entities................ 67
SECTION 15.05. Securities Payable on the Repayment Date..................... 67
ARTICLE SIXTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 16.01. Purposes for Which Meetings May Be Called.................... 67
SECTION 16.02. Call, Notice and Place of Meetings........................... 67
SECTION 16.03. Persons Entitled to Vote at Meetings......................... 68
SECTION 16.04. Quorum; Action............................................... 68
SECTION 16.05. Determination of Voting Rights; Conduct and
Adjournment of Meetings..................................... 69
SECTION 16.06. Counting Votes and Recording Action of
Meetings.................................................... 69
|
Page 7
ARTICLE SEVENTEEN
MISCELLANEOUS
PAGE
----
SECTION 17.01. Counterparts................................................... 65
TESTIMONIUM................................................................... 65
SIGNATURES AND SEALS.......................................................... 65
ACKNOWLEDGMENTS............................................................... 65
|
EXHIBIT A. Form of Certificate to be Given by Person En-
titled to Receive Bearer Security
EXHIBIT B. Form of Certificate to be Given by Euroclear
and CEDEL S.A. in Connection with the Exchange
of a Portion of a Temporary Global Security
EXHIBIT C. Form of Certificate to be Given by Euroclear
and CEDEL S.A. to Obtain Interest Prior to an
Exchange Date
EXHIBIT D. Form of Certificate to be Given by Beneficial
Owners to Obtain Interest Prior to an Exchange
Date
Page 8
|
TABLE SHOWING REFLECTION IN INDENTURE OF CERTAIN PROVISIONS
OF TRUST INDENTURE ACT OF 1939
|
REFLECTED IN INDENTURE
----------------------
SECTION
-------
TIA
(S) 310(a)(1) ......................................... 8.09
(a)(2) .............................................. 8.09
(a)(3) .............................................. Not Applicable
(a)(4) .............................................. Not Applicable
(a)(5) .............................................. 8.09
(b) ................................................. 8.08
8.10
(c) ................................................. Not Applicable
(S) 311(a) ........................................... 8.13
(b) ................................................. 8.13
(S) 312(a) ............................................ 6.01
6.02(i)
(b) ................................................. 6.02(ii)
(c) ................................................. 6.02(iii)
(S) 313(a) ........................................... 6.03(i)
(b) ................................................. 6.03(ii)
(c) ................................................. 6.03(i), (ii) and (iii)
(d) ................................................. 6.03(iii)
(S) 314(a) ............................................ 6.04
5.05
(b) ................................................. Not Applicable
(c)(1) .............................................. 1.02
(c)(2) .............................................. 1.02
(c)(3) .............................................. Not Applicable
(d) ................................................. Not Applicable
(e) ................................................. 1.02
(f) ................................................. Not Applicable
(S) 315(a) ........................................... 8.01(i)
8.01(iii)
(b) ................................................. 8.02
(c) ................................................. 8.01(ii)
(d) ................................................. 8.01
(d)(1) .............................................. 8.01(i)
(d)(2) .............................................. 8.01(iii)(b)
(d)(3) .............................................. 8.01(iii)(c)
(e) ................................................. 7.14
(S) 316(a) ........................................... 1.01
(S) 316(a)(1)(A) ...................................... 7.02
7.12
(a)(1)(B) ........................................... 7.13
(a)(2) .............................................. Not Applicable
(b) ................................................. 7.08
(c) ................................................. 1.04(viii)
|
Page 9
REFLECTED IN INDENTURE
----------------------
SECTION
-------
(S) 317(a)(1) .......................................... 7.03
(a)(2) ............................................... 7.04
(b) .................................................. 5.03
(S) 318(a) ............................................. 1.08
(c) .................................................. 1.08
|
Page 10
THIS INDENTURE is entered into as of December 1, 1995, between FIRST
CHICAGO NBD CORPORATION, a corporation organized and existing under the laws of
the State of Delaware (hereinafter called the "Company"), having its principal
executive office at One First National Plaza, Chicago, Illinois 60670, and THE
CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), a national banking association, as
trustee (hereinafter called the "Trustee"), having its principal corporate trust
office at 4 Chase MetroTech Center, New York, New York 11245, Attention:
Institutional Trust Group.
RECITALS OF THE COMPANY
The Company deems it necessary from time to time to issue its unsecured
subordinated debentures, notes, bonds and other evidences of indebtedness to be
issued in one or more series (hereinafter called the "Securities") as
hereinafter set forth, and to provide therefor the Company has duly authorized
the execution and delivery of this Indenture.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(i) the term "this Indenture" means this instrument as originally
executed or as it may from time to time be supplemented or amended by one
or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of particular
series of Securities established as contemplated by Section 3.01;
(ii) all references in this instrument to designated "Articles",
"Sections" and other subdivisions are to the designated Articles, Sections
and other subdivisions of this Indenture. 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;
(iii) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(iv) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein; and
(v) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as may be otherwise expressly provided herein or
in one or more indentures supplemental hereto, the term "generally
accepted accounting principles" with respect to any computation required
or permitted hereunder shall mean such accounting principles as are
generally accepted at the date of such computation.
"Act", when used with respect to any Holder, has the meaning specified in
Section 1.04.
Page 11
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized to act on behalf of the
Trustee to authenticate Securities pursuant to Section 8.14.
"Authorized Newspaper" means a newspaper, in an official language of the
country of publication or in the English language, customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and of
general circulation in the place in connection with which the term is used or in
the financial community of such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Authorized Officer" means the Chairman of the Board, the President, any
Vice Chairman of the Board, the Chief Financial Officer, any Vice President, the
Treasurer, the Secretary, the Comptroller, any Assistant Comptroller, any
Assistant Treasurer or any Assistant Secretary of the Company.
"Bank" means The First National Bank of Chicago, a national banking
association duly organized and existing under the laws of the United States of
America.
"Bearer Security" means any Security in the form established pursuant to
Section 2.02 which is payable to bearer, including, without limitation, unless
the context otherwise indicates, a Security in global bearer form.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day, other than a Saturday or Sunday, on which
banking institutions in the City of Chicago and any Place of Payment for the
Securities are open for business.
"CEDEL" or "CEDEL S.A." means Cedel Bank, societe anonyme or its
successors.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or if any
time after the execution and delivery of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
"Common Stock" means any stock of any class of the Company which has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company and includes the common
stock, $1 par value per share, of the Company as the same exists at the date of
this Indenture or as such stock may be constituted from time to time.
"Common Depositary" has the meaning specified in Section 3.04(ii).
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until any successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean any such successor corporation.
Page 12
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by its Chairman of the Board,
its President, a Vice Chairman of the Board, its Chief Financial Officer or a
Vice President, and by its Treasurer, an Assistant Treasurer, its Comptroller,
an Assistant Comptroller, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"corporation" includes corporations, associations, companies and business
trusts.
"Co-Security Registrar" has the meaning specified in Section 3.05.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Default" has the meaning specified in Section 7.07.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Depositary" means, with respect to the Securities of any series issuable
or issued in the form of a Global Security, the Person designated as Depositary
by the Company pursuant to Section 3.01 until a successor Depositary shall have
been appointed pursuant to Section 3.05, and thereafter "Depositary" shall mean
or include each Person who is then a Depositary hereunder, and if at any time
there is more than one such Person, "Depositary" as used with respect to the
Securities of any such series shall mean the Depositary with respect to the
Securities of that series.
"Designated Currency" has the meaning specified in Section 3.12.
"Dollar" or "$" 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.
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, as operator of the Euroclear System.
"European Communities" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Article Seven.
"Exchange Rate" shall have the meaning specified as contemplated in
Section 3.01.
"Exchange Rate Agent" shall have the meaning specified as contemplated in
Section 3.01.
"Exchange Rate Officer's Certificate" with respect to any date for the
payment of principal of (and premium, if any) and interest on any series of
Securities, means a certificate setting forth the applicable Exchange Rate and
the amounts payable in Dollars and Foreign Currencies in respect of the
principal of (and premium, if any) and interest on Securities denominated in
ECU, and other composite currency or Foreign Currency, and signed by the
Chairman of the Board, a Vice Chairman of the Board, the President, the Chief
Financial Officer, any Vice President, the Treasurer or any Assistant Treasurer
of the Company or the Exchange Rate Agent appointed pursuant to Section 3.01 and
delivered to the Trustee.
"Existing Subordinated Indebtedness" means, unless otherwise determined
with respect to any series of Securities pursuant to Section 3.01, the Company's
Floating Rate Subordinated Capital Notes Due December 1996, the Company's 9 7/8%
Subordinated Notes Due July 1999, the Company's 9% Subordinated Notes Due June
15, 1999, the Company's 9 7/8% Subordinated Notes Due August 15, 2000, the
Company's 11 1/4%
Page 13
Subordinated Notes Due February 20, 2001, the Company's 10 1/4% Subordinated
Notes Due May 1, 2001, the Company's 9 1/4% Subordinated Notes Due November 15,
2001, the Company's 8 7/8% Subordinated Notes Due March 15, 2002, the Company's
8 1/4% Subordinated Notes Due June 15, 2002, the Company's 9 1/5% Subordinated
Notes Due December 17, 2001, the Company's 7 5/8% Subordinated Notes Due January
15, 2003, the Company's 6 7/8% Subordinated Notes Due June 15, 2003, the
Company's Floating Rate Subordinated Notes Due July 28, 2003, the Company's 6
3/8% Subordinated Notes Due January 30, 2009, the Company's 7.125% Subordinated
Notes Due 2007, the Company's 7 1/4% Subordinated Debentures Due 2004, the
Company's 8.10% Subordinated Notes Due 2002, the Company's 7.40% Subordinated
Debentures due May 10, 2023 and the Company's Floating Rate Subordinated Notes
Due 2005.
"Foreign Currency" means a currency issued by the government of any
country other than the United States of America.
"General Obligations" means, unless otherwise determined with respect to
any series of Securities pursuant to Section 3.01, all obligations of the
Company to make payment on account of claims in respect of derivative products
such as interest and foreign exchange rate contracts, commodity contracts and
similar arrangements, other than (i) obligations on account of Senior
Indebtedness, (ii) obligations on account of indebtedness for money borrowed
ranking pari passu with or subordinate to the Securities and (iii) obligations
which by their terms are expressly stated not to be superior in right of payment
to the Securities or to rank on a parity with the Securities; provided, however,
that notwithstanding the foregoing, in the event that any rule, guideline or
interpretation promulgated or issued by the Board of Governors of the Federal
Reserve System (or other competent regulatory agency or authority), as from time
to time in effect, establishes or specifies criteria for the inclusion in
regulatory capital of subordinated debt of a bank holding company requiring that
such subordinated debt be subordinated to obligations to creditors in addition
to those set forth above, then the term "General Obligations" shall also include
such additional obligations to creditors, as from time to time in effect
pursuant to such rules, guidelines or interpretations. For purposes of this
definition, "claim" shall have the meaning assigned thereto in Section 101(4) of
the Bankruptcy Code of 1978, as amended to the date of this instrument.
"Global Exchange Date" has the meaning specified in Section 3.04 (iv).
"Global Security" means a Security issued to evidence all or a part of a
series of Securities in accordance with Section 3.03.
"Holder", with respect to a Registered Security, means a Person in whose
name such Registered Security is registered in the Security Register and, with
respect to a Bearer Security (or any temporary Global Security) or a coupon,
means the bearer thereof.
"interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any series of
Securities, means the Stated Maturity of an instalment of interest on such
Securities.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security (or any instalment of principal) becomes
due and payable as therein or herein provided, whether at the Stated Maturity or
by declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President, a Vice Chairman of the Board, the Chief Financial Officer
or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Comptroller, an Assistant Comptroller, the Secretary or an Assistant Secretary
of the Company, and delivered to the Trustee. Each such certificate shall
contain the statements set forth in Section 1.02, if applicable.
Page 14
"Opinion of Counsel" means a written opinion of counsel, who may (except
as otherwise expressly provided in this Indenture) be an employee of the
Company, and who shall be reasonably acceptable to the Trustee. Each such
opinion shall contain the statements set forth in Section 1.02, if applicable.
"Original Issue Discount Security" means any Security which 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 7.02.
"Outstanding", when used with respect to Securities or Securities of any
series, means, as of the date of determination, all such Securities theretofore
authenticated and delivered under this Indenture, except:
(i) such Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) such Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities, provided that, if such Securities are
to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has been
made; and
(iii) such Securities in lieu of which other Securities have been
authenticated and delivered pursuant to Section 3.06 of this Indenture;
provided, however, that in determining whether the Holders of the requisite
principal amount of such Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities, the principal amount of
Original Issue Discount Securities 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 7.02, and Securities owned by the
Company or any other obligor upon the Securities or any Affiliate of the Company
or such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which a Responsible Officer of the Trustee actually
knows to be so owned shall be disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, premium, if any, or interest on any Securities or any coupons
appertaining thereto on behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where, subject to the provisions of Section
5.02, the principal of (and premium, if any) and interest on the Securities of
that series are payable as specified in accordance with Section 3.01.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
"Principal Corporate Trust Office" means the principal office of the
Trustee, at which at any particular time its corporate trust business shall be
principally administered, which office at the date of execution of this
instrument is at the address set forth in the first paragraph of this
instrument.
Page 15
"Principal Paying Agent" means the Paying Agent, if any, designated as
such by the Company pursuant to Section 3.01 of this Indenture.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price specified in such Security at which it is to be redeemed
pursuant to this Indenture.
"Registered Security" means any Security in the form established pursuant
to Section 2.02 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Security on any
Interest Payment Date means the date, if any, specified in such Security as the
"Regular Record Date".
"Remarketing Entity", when used with respect to the Securities of any
series which are repayable at the option of the Holders thereof before their
Stated Maturity, means any Person designated by the Company to purchase any such
Securities.
"Repayment Date", when used with respect to any Security to be repaid upon
exercise of option for repayment by the Holder, means the date fixed for such
repayment pursuant to this Indenture.
"Repayment Price", when used with respect to any Security to be repaid
upon exercise of option for repayment by the Holder, means the price at which it
is to be repaid pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee, means any
vice president, assistant vice president or corporate trust officer of the
Corporate Trust Department of the Trustee and also means, with respect to a
particular corporate trust matter, any other officer of the Trustee to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Security" or "Securities" means any Security or Securities, as the case
may be, authenticated and delivered under this Indenture; provided, however,
that, if at any time there is more than one Person acting as Trustee under this
Indenture, "Securities," with respect to any such Person, shall mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
"Security Register" has the meaning specified in Section 3.05.
"Security Registrar" has the meaning specified in Section 3.05.
"Senior Indebtedness" means the principal of, premium, if any, and
interest on (i) all of the Company's indebtedness for money borrowed, other than
the Securities and the Existing Subordinated Indebtedness whether outstanding on
the date of execution of the Indenture or thereafter created, assumed or
incurred, except such indebtedness as is by its terms expressly stated to be not
superior in right of payment to the Securities or the Existing Subordinated
Indebtedness and (ii) any deferrals, renewals or extensions of any such Senior
Indebtedness. The term "indebtedness for money borrowed" as used in the
foregoing sentence shall include, without limitation, any obligation of, or any
obligation guaranteed by, the Company for the repayment of borrowed money,
whether or not evidenced by bonds, debentures, notes or other written
instruments, and any deferred obligation for the payment of the purchase price
of property or assets.
"Special Record Date" for the payment of any Defaulted Interest means the
date fixed by the Trustee pursuant to Section 3.07.
Page 16
"Stated Maturity", when used with respect to any Security, or any
instalment of principal thereof or interest thereon, means the date specified in
such Security as the fixed date on which the principal of such Security, or such
instalment of principal or interest, is due and payable.
"Subsidiary of the Company" or "Subsidiary" means a corporation at least a
majority of the outstanding voting stock of which is owned, directly or
indirectly, by the Company or by one or more Subsidiaries of the Company, or by
the Company and one or more Subsidiaries of the Company.
As used under this heading, the term "voting stock" means stock having
ordinary voting power for the election of directors irrespective of whether or
not stock of any other class or classes shall have or might have voting power by
reason of the happening of any contingency.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
or include each Person who is then a Trustee hereunder, and if at any time there
is more than one such Person, "Trustee" as used with respect to the Securities
of any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" or "TIA" (except as herein otherwise expressly
provided) means the Trust Indenture Act of 1939, as in force at the date as of
which this instrument was executed, and, to the extent required by law, as
amended.
"United States" means the United States of America (including the States
and the District of Columbia), its territories, its possessions and other areas
subject to its jurisdiction.
"United States Alien", except as otherwise provided in or pursuant to this
Indenture, means any Person who, for United States Federal income tax purposes,
is a foreign corporation, a non-resident alien individual, a non-resident alien
fiduciary of a foreign estate or trust, or a foreign partnership one or more of
the members of which is, for United States Federal income tax purposes, a
foreign corporation, a non-resident alien individual or a non-resident alien
fiduciary of a foreign estate or trust.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
SECTION 1.02. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than the Officers' Certificate
required by Section 5.05) shall include:
(i) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(ii) 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;
(iii) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
Page 17
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Holders.
(i) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders or
Holders of any series may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing. If Securities of a series are issuable in
whole or in part as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders may, alternatively, be embodied in and evidenced by
the record of Holders of Securities voting in favor thereof, either in person or
by proxies duly appointed in writing, at any meeting of Holders of Securities
duly called and held in accordance with the provisions of Article Sixteen, or a
combination of such instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee, and, where it is
hereby expressly required, to the Company. Such instrument or instruments and
any such record (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such instrument
or instruments and so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or the holding by any
Person of a Security shall be sufficient for any purpose of this Indenture and
(subject to Section 8.01) conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Section. The record of any meeting of
Holders of Securities shall be proved in the manner provided in Section 16.06.
(ii) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by or on behalf of any legal entity other than an individual, such
certificate or affidavit shall also constitute proof of the authority of the
Person executing the same. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient.
(iii) The ownership of Registered Securities shall be proved by the
Security Register.
Page 18
(iv) The principal amount and serial numbers of Bearer Securities held by
any Person, and the date of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank or other depositary, wherever situated, if such certificate shall
be deemed by the Trustee to be satisfactory, showing that at the date therein
mentioned such Person had on deposit with such depositary, or exhibited to it,
the Bearer Securities therein described; or such facts may be proved by the
certificate or affidavit of the Person holding such Bearer Securities, if such
certificate or affidavit is deemed by the Trustee to be satisfactory. The
Trustee and the Company may assume that such ownership of any Bearer Security
continues until (1) another certificate or affidavit bearing a later date issued
in respect of the same Bearer Security is produced, or (2) such Bearer Security
is produced to the Trustee by some other Person, or (3) such Bearer Security is
surrendered in exchange for a Registered Security, or (4) such Bearer Security
is no longer Outstanding.
(v) The fact and date of execution of any such instrument or writing, the
authority of the Person executing the same and the principal amount and serial
numbers of Bearer Securities held by the Person so executing such instrument or
writing and the date of holding the same may also be proved in any other manner
which the Trustee deems sufficient; and the Trustee may in any instance require
further proof with respect to any of the matters referred to in this Section.
(vi) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof, in
respect of any action taken, suffered or omitted by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made upon such
Security.
(vii) For purposes of determining the principal amount of Outstanding
Securities of any series the Holders of which are required, requested or
permitted to give any request, demand, authorization, direction, notice,
consent, waiver or take any other Act under the Indenture, each Security
denominated in a Foreign Currency or composite currency shall be deemed to have
the principal amount determined by the Exchange Rate Agent by converting the
principal amount of such Security in the currency in which such Security is
denominated into Dollars at the Exchange Rate as of the date such Act is
delivered to the Trustee and, where it is hereby expressly required, to the
Company, by Holders of the required aggregate principal amount of the
Outstanding Securities of such series (or, if there is no such rate on such
date, such rate on the date determined as specified as contemplated in Section
3.01).
(viii) The Company may, in the circumstances permitted by the Trust
Indenture Act, set a record date for purposes of determining the identity of
Holders of Securities of any series entitled to give any request, demand,
authorization, direction, notice, consent, waiver or take any other Act, or to
vote or consent to any action by vote or consent authorized or permitted to be
given or taken by Holders of Securities of such series. If not set by the
Company prior to the first solicitation of a Holder of Securities of such Series
made by any Person in respect of any such action, or in the case of any such
vote, prior to such vote, such record date shall be the later of 30 days prior
to the first solicitation of such consent or the date of the most recent list of
Holders of such Securities furnished to the Trustee pursuant to Section 6.01
prior to such solicitation.
(ix) Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount. Any notice given or
action taken by a Holder or its agents with regard to different parts of such
principal amount pursuant to this paragraph shall have the same effect as if
given or taken by separate Holders of each such different part.
(x) Without limiting the generality of the foregoing, unless otherwise
specified pursuant to Section 3.01 or pursuant to one or more indentures
supplemental hereto, a Holder, including a Depositary that is the Holder of a
Page 19
Global Security, may make, give or take, by a proxy or proxies duly appointed in
writing, any request, demand, authorization, direction, notice, consent, waiver
or other action provided in this Indenture to be made, given or taken by
Holders, and a Depositary that is the Holder of a Global Security may provide
its proxy or proxies to the beneficial owners of interests in any such Global
Security through such Depositary's standing instructions and customary
practices.
(xi) The Company may fix a record date for the purpose of determining the
Persons who are beneficial owners of interests in any Global Security held by a
Depositary entitled under the procedures of such Depositary to make, give or
take, by a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by Holders. If such a record date is
fixed, the Holders on such record date or their duly appointed proxy or proxies,
and only such Persons, shall be entitled to make, give or take such request,
demand, authorization, direction, notice, consent, waiver or other action,
whether or not such Holders remain Holders after such record date. No such
request, demand, authorization, direction, notice, consent, waiver or other
action shall be valid or effective if made, given or taken more than 90 days
after such record date.
SECTION 1.05. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(i) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or with
the Trustee at its Principal Corporate Trust Office, or
(ii) the Company by any Holder or by the Trustee shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class, postage prepaid, to the Company, to the
attention of its Treasurer, addressed to it at the address of its principal
office specified in the first paragraph of this Indenture or at any other
address previously furnished in writing to the Trustee by the Company.
SECTION 1.06. Notices to Holders; Waiver.
Where this Indenture or any Security provides for notice to Holders of any
event,
(1) such notice shall be sufficiently given (unless otherwise herein
or in such Security expressly provided) if in writing and mailed,
first-class, postage prepaid, to each Holder of Registered Securities
affected by such event, at his address as it appears in the Security
Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice.
(2) such notice shall be sufficiently given to Holders of Bearer
Securities if published in an Authorized Newspaper in The City of New York
and, if the Securities of such series are then listed on The International
Stock Exchange of the United Kingdom and the Republic of Ireland Limited
and such stock exchange shall so require, in London and, if the Securities
of such series are then listed on the Luxembourg Stock Exchange and such
stock exchange shall so require, in Luxembourg and, if the Securities of
such series are then listed on any other stock exchange and such stock
exchange shall so require, in any other required city outside the United
States, 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.
In case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice to Holders of
Registered Securities by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder. In any case where notice to Holders of Registered Securities
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of Registered Securities 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 Bearer
Securities given as provided above.
Page 20
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.
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 1.07. Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent, or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
SECTION 1.08. Conflict with Trust Indenture Act.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by, or with another provision (an
"incorporated provision") included in this Indenture by operation of Sections
310 and 318, inclusive, of the TIA, such imposed duties or incorporated
provision shall control.
SECTION 1.09. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.10. Successors and Assigns.
All convenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 1.11. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.12. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder, the Holders and, to the extent provided in Article Fourteen hereof,
the holders of Senior Indebtedness and creditors in respect of General
Obligations, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 1.13. Legal Holidays.
In any case where any Interest Payment Date, Stated Maturity, Repayment
Date or Redemption Date of any Security or any date on which any Defaulted
Interest is proposed to be paid shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provisions of the Securities or this
Indenture) payment of the principal of, premium, if any, or interest on any
Securities need not be made at such Place of Payment on such date, but may be
made on the next succeeding Business Day with the same force and effect as if
made on the
Page 21
Interest Payment Date, Stated Maturity, Repayment Date or Redemption Date or on
the date on which Defaulted Interest is proposed to be paid, and, if such
payment is made, no interest shall accrue on such payment for the period from
and after any such Interest Payment Date, Stated Maturity, Repayment Date or
Redemption Date, as the case may be.
SECTION 1.14. Governing Law.
This Indenture and the Securities shall be construed in accordance with
and governed by the laws of the State of New York.
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Forms Generally.
All Securities and any related coupons shall have such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities
or coupons, as evidenced by their execution of the Securities or coupons.
The Trustee's certificates of authentication shall be in substantially the
form set forth in this Article.
Unless otherwise provided as contemplated by Section 3.01 with respect to
any series of Securities, the Securities of each series shall be issuable in
registered form without coupons. If so provided as contemplated by Section 3.01,
the Securities of a series shall be issuable solely in bearer form, or in both
registered form and bearer form. Unless otherwise specified as contemplated by
Section 3.01, Securities in bearer form shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
SECTION 2.02. Form of Securities.
Each Security and coupon shall be in one of the forms approved from time
to time by or pursuant to a Board Resolution. Upon or prior to the delivery of a
Security or coupons in any such form to the Trustee for authentication, the
Company shall deliver to the Trustee the following:
(i) the Board Resolution by or pursuant to which such form of Security
or coupons has been approved, certified by the Secretary or an
Assistant Secretary of the Company;
(ii) the Officers' Certificate required by Section 3.01 of this
Indenture;
(iii) the Company Order required by Section 3.03 of this Indenture; and
(iv) the Opinion of Counsel required by Section 3.03 of this Indenture.
If temporary Securities of any series are issued in global form as
permitted by Section 3.04, the form thereof shall be established as provided in
this Section 2.02.
Page 22
SECTION 2.03. Form of Trustee's Certificate of Authentication.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
The Chase Manhattan Bank (National
Association), as Trustee
By __________________________________
Authorized Officer
Section 2.04. Global Securities.
If Securities of a series are issuable in whole or in part in global form,
as specified as contemplated by Section 3.01, then, notwithstanding clause (xi)
of Section 3.01 and the provisions of Section 3.02, such Global Security shall
represent such of the outstanding Securities of such series as shall be
specified therein and may provide that it shall represent the aggregate amount
of Outstanding Securities from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities represented thereby may from time to
time be reduced to reflect exchanges or increased to reflect the issuance of
additional uncertificated securities of such series. Any endorsement of a Global
Security to reflect the amount, or any increase or decrease in the amount, of
Outstanding Securities represented thereby shall be made in such manner and upon
instructions given by such Person or Persons as shall be specified therein or in
the Company Order to be delivered to the Trustee pursuant to Section 3.03 or
Section 3.04.
Global Securities may be issued in either registered or bearer form and in
either temporary or permanent form.
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Title and Terms.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued up
to the aggregate principal amount of Securities from time to time authorized by
or pursuant to a Board Resolution.
The Securities may be issued in one or more series. All Securities of each
series issued under this Indenture shall in all respects be equally and ratably
entitled to the benefits hereof with respect to such series without preference,
priority or distinction on account of the actual time or times of the
authentication and delivery or Maturity of the Securities of such series. There
shall be established in or pursuant to a Board Resolution, and set forth in, or
determined in the manner provided in, an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series,
(i) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(ii) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of that series pursuant to this Article Three or Sections 4.07,
9.06 or 14.03);
(iii) the date or dates on which the principal and premium, if any,
of the Securities of the series is payable;
Page 23
(iv) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method or methods by which such rates may be
determined, if any, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest shall be
payable, the Regular Record Date for the interest payable on any Interest
Payment Date and the basis upon which interest shall be calculated if
other than that of a 360-day year consisting of twelve 30-day months;
(v) the place or places where, subject to the provisions of Section
5.02, the principal of (and premium, if any) and interest, if any, on
Securities of the series shall be payable;
(vi) the extent to which any of the Securities will be issuable in
temporary or permanent global form, and in such case, the Depositary for
such Global Security or Securities, the terms and conditions, if any, upon
which such Global Security may be exchanged in whole or in part for
definitive securities, and the manner in which any interest payable on a
temporary or permanent Global Security will be paid, whether or not
consistent with Section 3.04 or 3.05;
(vii) the office or offices or agency where, subject to Section
5.02, the Securities may be presented for registration of transfer or
exchange;
(viii) the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series may
be redeemed, in whole or in part, at the option of the Company;
(ix) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(x) whether, and under what conditions, additional amounts will be
payable to Holders of Securities of the series pursuant to Section 5.04;
(xi) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Registered Securities of the series
shall be issuable; and, if other than $5,000 or any integral multiple
thereof, the denominations in which Bearer Securities of the series shall
be issuable;
(xii) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, whether Securities of
the series are to be issuable with or without coupons or both and, in the
case of Bearer Securities, the date as of which such Bearer Securities
shall be dated if other than the date of original issuance of the first
Security of such series of like tenor and term to be issued;
(xiii) the currency or currencies of denominations of the Securities
of any series, which may be in Dollars, any Foreign Currency or any
composite currency, including but not limited to the ECU, and, if any such
currency of denomination is a composite currency other than the ECU, the
agency or organization, if any, responsible for overseeing such composite
currency;
(xiv) the currency or currencies in which payment of the principal
of (and premium, if any) and interest on the Securities will be made, the
currency or currencies, if any, in which payment of the principal of (and
premium, if any) or the interest on Registered Securities, at the election
of each of the Holders thereof, may also be payable and the periods within
which and the terms and conditions upon which such election is to be made
and the Exchange Rate and the Exchange Rate Agent;
(xv) if payments of principal of (and premium, if any), or interest
on the Securities of the series are to be made in a Foreign Currency other
than the currency in which such Securities are denominated, the manner in
which the Exchange Rate with respect to such payments shall be determined;
(xvi) the terms, if any, upon which the Securities of the series may
be convertible into or exchanged for Common Stock, preferred stock (which
may be represented by depositary shares), other debt securities or
warrants for Common Stock, preferred stock or indebtedness or other
securities of any kind of the Company or any other obligor, and the terms
and conditions upon which such conversion or exchange shall be effected,
including the initial conversion or exchange price or rate, the conversion
or exchange period and any other provision in addition to or in lieu of
those described herein;
Page 24
(xvii) if the amount of payments of principal of (and premium, if
any) or any interest on Securities of the series may be determined with
reference to an index, the method or methods by which such amounts shall
be determined;
(xviii) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 7.02;
(xix) any addition to or change in the Events of Default or
covenants of the Company pertaining to the Securities of the series; and
(xx) any other terms of the series.
All Securities of any one series and the coupons appertaining to Bearer
Securities of such series, if any, shall be substantially identical except, in
the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution and set forth, or
determined in the manner provided, in such Officers' Certificate or in any such
indenture supplemental hereto.
Securities of any particular series may be issued at various times, with
different dates on which the principal or any instalment of principal is
payable, with different rates of interest, if any, or different methods by which
rates of interest may be determined, with different dates on which such interest
may be payable and with different Redemption Dates or Repayment Dates and may be
denominated in different currencies or payable in different currencies.
All Securities shall be subordinate and junior in right of payment to the
obligations of the Company to holders of Senior Indebtedness and creditors in
respect of General Obligations of the Company as provided in Article Fourteen.
SECTION 3.02. Denominations.
The Securities of each series shall be issuable in such form and
denominations as shall be specified as contemplated by Section 3.01. In the
absence of any specification with respect to the Securities of any series, the
Registered Securities of each series shall be issuable only as Securities
without coupons in denominations of $1,000 and any integral multiple thereof and
the Bearer Securities of each series, if any, shall be issuable with coupons and
in denominations of $5,000 and any integral multiple thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its President, a Vice Chairman of the Board, its Chief Financial
Officer or one of its Executive Vice Presidents and by its Secretary or one of
its Assistant Secretaries. The signatures of any or all of these officers on the
Securities may be manual or facsimile. Coupons shall bear the facsimile
signature of the Company's Chairman of the Board, its President, a Vice Chairman
of the Board, its Chief Financial Officer, one of its Executive Vice Presidents
or the Treasurer.
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series, together with any
coupons appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee shall, upon receipt of the Company
Order, authenticate and deliver such Securities as in this Indenture provided
and not otherwise; provided, however, that, in connection with its original
issuance, no Bearer
Page 25
Security shall be mailed or otherwise delivered to any location in the United
States; and provided, further, that a Bearer Security may be delivered in
connection with its original issuance only if the Person entitled to receive
such Bearer Security shall have delivered to the Trustee, or such other Person
as shall be specified in a temporary Global Security delivered pursuant to
Section 3.04, a certificate in the form required by Section 3.11(i).
If the Company shall establish pursuant to Section 3.01 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities in registered or permanent bearer form, then the
Company shall execute and the Trustee shall, in accordance with this Section and
a Company Order for the authentication and delivery of such Global Securities
with respect to such series, authenticate and deliver one or more Global
Securities in permanent or temporary form that (i) shall represent and shall be
denominated in an aggregate amount equal to the aggregate principal amount of
the Outstanding Securities of such series to be represented by one or more
Global Securities, (ii) shall be registered, if in registered form, in the name
of the Depositary for such Global Security or Securities or the nominee of such
Depositary and (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions.
Each Depositary designated pursuant to Section 3.01 for a Global Security
in registered form 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, as amended, and any other applicable statute or
regulation.
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 8.01) shall be
fully protected in relying upon, an Opinion of Counsel complying with Section
1.02 and stating that,
(i) the form of such Securities and coupons, if any, has been
established in conformity with the provisions of this Indenture;
(ii) the terms of such Securities and coupons, if any, or the manner
of determining such terms have been established in conformity with the
provisions of this Indenture;
(iii) that such Securities and coupons, when authenticated and
delivered by the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other laws of
general applicability relating to or affecting the enforcement of
creditors' rights and to general principles of equity; and
(iv) such other matters as the Trustee may reasonably request.
The Trustee shall not be required to authenticate such Securities if the
issue thereof will adversely affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.01 and of this Section 3.03,
if all Securities of a series are not to be originally issued at one time, it
shall not be necessary to deliver the Board Resolution or Officers' Certificate
otherwise required pursuant to Section 3.01 or the Company Order and Opinion of
Counsel otherwise required pursuant to this Section 3.03 at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued and such documents reasonably contemplate
the issuance of all Securities of such series; provided that any subsequent
request by the Company to the Trustee to authenticate Securities of such series
upon original issuance shall constitute a representation and warranty by the
Company that as of the date of such request, the statements made in the
Officers' Certificate or other certificates delivered pursuant to Sections 1.02
and 3.01 shall be true and correct as if made on such date.
A Company Order, Officers' Certificate or Board Resolution or supplemental
indenture delivered by the Company to the Trustee in the circumstances set forth
in the preceding paragraph may provide that Securities
Page 26
which are the subject thereof will be authenticated and delivered by the Trustee
or its agent on original issue from time to time in the aggregate principal
amount, if any, established for such series pursuant to such procedures
acceptable to the Trustee as may be specified from time to time by Company Order
upon the telephonic, electronic or written order of Persons designated in such
Company Order, Officers' Certificate, supplemental indenture or Board Resolution
and that such Persons are authorized to determine, consistent with such Company
Order, Officers' Certificate, supplemental indenture or Board Resolution, such
terms and conditions of said Securities as are specified in such Company Order,
Officers' Certificate, supplemental indenture or Board Resolution.
Each Registered Security shall be dated the date of its authentication;
and unless otherwise specified as contemplated by Section 3.01, each Bearer
Security and any temporary Global Security referred to in Section 3.04 shall be
dated as of the date of original issuance of such Security.
No Security or coupon appertaining thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose, unless
there appears on such Security a certificate of authentication substantially in
the form provided for herein executed by the Trustee by manual signature, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Except as permitted by Section 3.06, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and cancelled. Notwithstanding the
foregoing, if any Security or portion thereof shall have been duly authenticated
and delivered hereunder but never issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for cancellation as provided
in Section 3.09 together with a written statement (which need not comply with
Section 1.02 and need not be accompanied by an Opinion of Counsel) stating that
such Security or portion thereof has never been issued and sold by the Company,
for all purposes of this Indenture such Security shall be deemed never to have
been authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 3.04. Temporary Securities.
(a) Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order and the receipt of the
certifications and opinions required under Sections 3.01 and 3.03, the Trustee
shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denominations, substantially of the tenor of the definitive Securities in lieu
of which they are issued in registered form or, if authorized, in bearer form
with one or more coupons or without coupons, and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of such
Securities. In the case of any series which may be issuable as Bearer
Securities, such temporary Securities may be in global form, representing such
of the Outstanding Securities of such series as shall be specified therein.
(b) Unless otherwise provided pursuant to Section 3.01:
(i) Except in the case of temporary Securities in global form, each
of which shall be exchanged in accordance with the provisions of the
following paragraphs, if temporary Securities of any series are issued,
the Company will cause definitive Securities of such series to be prepared
without unreasonable delay. After the preparation of definitive
Securities, the temporary Securities of such series shall be exchangeable
for definitive Securities of such series upon surrender of the temporary
Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any
series (accompanied, if applicable, by all unmatured coupons and all
matured coupons in default appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of such series
of authorized denominations; provided, however, that no definitive Bearer
Security shall be delivered in exchange for a temporary Registered
Security; and provided, further, that a definitive Bearer Security shall
be delivered in exchange for a temporary Bearer Security only in
compliance with the
Page 27
conditions set forth in Section 3.03. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series.
(ii) If temporary Securities of any series are issued in global
form, any such temporary Global Security shall, unless otherwise provided
in such temporary Global Security, be delivered to the London office of a
depositary or common depositary (the "Common Depositary"), for the benefit
of the operator of Euroclear and CEDEL S.A., for credit to the respective
accounts of the beneficial owners of such Securities (or to such other
accounts as they may direct). Upon receipt of written instructions (which
need not comply with Section 1.02) signed on behalf of the Company by any
Person authorized to give such instructions, the Trustee or any
Authenticating Agent shall endorse such temporary Global Security to
reflect the initial principal amount, or an increase in the principal
amount, of Outstanding Securities represented thereby. Until such initial
endorsement, such temporary Global Security shall not evidence any
obligation of the Company. Such temporary Global Security shall at any
time represent the aggregate principal amount of Outstanding Securities
theretofore endorsed thereon as provided above, subject to reduction to
reflect exchanges as described below.
(iii) Unless otherwise specified in such temporary Global Security,
and subject to the second proviso in the following paragraph, the interest
of a beneficial owner of Securities of a series in a temporary Global
Security shall be exchanged for definitive Securities (including a
definitive global Bearer Security) of such series and of like tenor
following the Global Exchange Date (as defined below) when the account
holder instructs Euroclear or CEDEL S.A., as the case may be, to request
such exchange on his behalf and delivers to Euroclear or CEDEL S.A., as
the case may be, a certificate in the form required by Section 3.11(i),
dated no earlier than 15 days prior to the Global Exchange Date, copies of
which certificate shall be available from the offices of Euroclear and
CEDEL S.A., the Trustee, any Authenticating Agent appointed for such
series of Securities and each Paying Agent. Unless otherwise specified in
such temporary Global Security, any such exchange shall be made free of
charge to the beneficial owners of such temporary Global Security, except
that a Person receiving definitive Securities must bear the cost of
insurance, postage, transportation and the like in the event that such
Person does not take delivery of such definitive Securities in person at
the offices of Euroclear or CEDEL S.A. Definitive Securities in bearer
form to be delivered in exchange for any portion of a temporary Global
Security shall be delivered only outside the United States.
(iv) Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such
temporary Global Security as the "Global Exchange Date" (the "Global
Exchange Date"), the Company shall deliver to the Trustee, or, if the
Trustee appoints an Authenticating Agent pursuant to Section 8.14, to any
such Authenticating Agent, definitive Securities in aggregate principal
amount equal to the principal amount of such temporary Global Security,
executed by the Company. Unless otherwise specified as contemplated by
Section 3.01, such definitive Securities shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof, as may be
specified by the Company, the Trustee or any such Authenticating Agent, as
may be appropriate. On or after the Global Exchange Date, such temporary
Global Security shall be surrendered by the Common Depositary to the
Trustee or any such Authenticating Agent, as the Company's agent for such
purpose, to be exchanged, in whole or from time to time in part, for
definitive Securities without charge and the Trustee or any such
Authenticating Agent shall authenticate and deliver, in exchange for each
portion of such temporary Global Security, an equal aggregate principal
amount of definitive Securities of the same series, of authorized
denominations and of like tenor as the portion of such temporary Global
Security to be exchanged, which, except as otherwise specified as
contemplated by Section 3.01, shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof, provided, however,
that, unless otherwise specified in such temporary Global Security, upon
such presentation by the Common Depositary, such temporary Global Security
is accompanied by a certificate dated the Global Exchange Date or a
subsequent date and signed by Euroclear as to the portion of such
temporary Global Security held for its account then to be exchanged and a
certificate dated the Global Exchange Date or a subsequent date and signed
by CEDEL S.A., as to the portion of such temporary Global Security held
for its account then to be exchanged, each in the form required by Section
3.11(ii); and provided, further, that a definitive Bearer Security
(including a definitive
Page 28
global Bearer Security) shall be delivered in exchange for a portion of a
temporary Global Security only in compliance with the conditions set forth
in Section 3.03.
(v) Upon any exchange of a portion of any such temporary Global
Security, such temporary Global Security shall be endorsed by the Trustee
or any such Authenticating Agent, as the case may be, to reflect the
reduction of the principal amount evidenced thereby, whereupon its
remaining principal amount shall be reduced for all purposes by the amount
so exchanged. Until so exchanged in full, such temporary Global Security
shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series authenticated and
delivered hereunder, except that, unless otherwise specified as
contemplated by Section 3.01, interest payable on such temporary Global
Security on an Interest Payment Date for Securities of such series
occurring prior to the applicable Global Exchange Date shall be payable,
without interest, to Euroclear and CEDEL S.A. on or after such Interest
Payment Date upon delivery by Euroclear and CEDEL S.A. to the Trustee or
the Paying Agent, as the case may be, of a certificate or certificates in
the form required by Section 3.11(iii), for credit on or after such
Interest Payment Date to the respective accounts of the Persons who are
the beneficial owners of such temporary Global Security on such Interest
Payment Date and who have each delivered to Euroclear or CEDEL S.A., as
the case may be, a certificate in the form required by Section 3.11(iv).
Any interest so received by Euroclear and Cedel S.A. and not paid as
herein provided prior to the Global Exchange Date shall be returned to the
Trustee or Paying Agent, as the case may be, which, upon expiration of two
years after such Interest Payment Date, shall repay such interest on
Company Request in accordance with Section 5.03.
SECTION 3.05. Registration, Registration of Transfer and Exchange.
With respect to Registered Securities, the Company shall keep or cause to
be kept a register (sometimes referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Registered Securities and the registration of
transfers of Registered Securities and the Company shall appoint a "Security
Registrar", and may appoint any "Co-Security Registrar", as may be appropriate,
to keep the Security Register. Such Security Register shall be in written form
or in any other form capable of being converted into written form within a
reasonable time. At all reasonable times the information contained in such
Security Register shall be available for inspection by the Trustee at the office
of the Security Registrar. In the event that any Registered Securities issued
hereunder have The City of New York as a Place of Payment, the Company shall
appoint either a Security Registrar or Co-Security Registrar located in The City
of New York.
Upon surrender for registration of transfer of any Registered Security of
any series at the office or agency of the Company maintained pursuant to Section
5.02 for such purpose in a Place of Payment for such series, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities of
such series of any authorized denominations and of a like aggregate principal
amount, tenor and Stated Maturity.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of such series, of any authorized
denominations and of like aggregate principal amount, tenor and Stated Maturity,
upon surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
Registered Securities may not be exchanged for Bearer Securities.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured coupon
or coupons or matured coupon or coupons in default, such exchange may be
effected if
Page 29
the Bearer Securities are accompanied by payment in funds acceptable to the
Company in an amount equal to the face amount of such missing coupon or coupons,
or the surrender of such missing coupon or coupons may be waived by the Company
and the Trustee if there be furnished to them such security or indemnity as they
may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Security shall surrender to any Paying Agent any such missing
coupon in respect of which such a payment shall have been made, such Holder
shall be entitled to receive the amount of such payment from the Company;
provided, however, that interest represented by coupons shall be payable only
upon presentation and surrender of those coupons at an office or agency of a
Paying Agent, maintained pursuant to Section 5.02 for such purpose, located
outside the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such office or agency in exchange
for a Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be.
Notwithstanding any other provision of this Section, unless and until it
is exchanged in whole or in part for individual Securities represented thereby,
a Global Security representing all or a portion of the Securities of a series
may not be transferred except as a whole by the Depositary for such series to a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or 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.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
If at any time the Depositary for the Securities of a series notifies the
Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
such series shall no longer be eligible under Section 3.03, the Company shall
appoint a successor Depositary with respect to the Securities of such series. If
a successor Depositary for the Securities of such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such ineligibility, the Company's election pursuant to Section 3.01(vi) shall
no longer be effective with respect to the Securities of such series and the
Company will execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver Securities of such series of like tenor and terms in
definitive form in an aggregate principal amount equal to the principal amount
of the Global Security or Securities representing such series in exchange for
such Global Security or Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities. In such
event, the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, will deliver, Securities of such series of like tenor and terms in
definitive form in an aggregate principal amount equal to the principal amount
of the Global Security or Securities representing such series in exchange for
such Global Security or Securities.
If specified by the Company pursuant to Section 3.01 with respect to a
series of Securities, the Depositary for such series of Securities may surrender
a Global Security for such series of Securities in exchange in whole or in part
for Securities of such series of like tenor and terms and in definitive form on
such terms as are acceptable to the Company, the Trustee and such Depositary.
Thereupon, the Company shall execute, and the Trustee upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, shall authenticate and deliver, without service charge:
(a) to the Depositary or to each Person specified by such Depositary
a new Security or Securities of the same series, of like tenor and terms
and of any authorized denomination as requested by such Person in
Page 30
aggregate principal amount equal to and in exchange for such Person's
beneficial interest in the Global Security; and
(b) to such Depositary a new Global Security of like tenor and terms
and in an authorized denomination equal to the difference, if any, between
the principal amount of the surrendered Global Security and the aggregate
principal amount of Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three paragraphs, the
Company will execute and the Trustee, pursuant to a Company Order, will
authenticate and deliver, Securities (a) in definitive registered form in
authorized denominations, if the Securities of such series are issuable as
Registered Securities, (b) in definitive bearer form in authorized
denominations, with coupons attached, if the Securities of such series are
issuable as Bearer Securities or (c) as either Registered or Bearer Securities,
if the Securities of such series are issuable in either form; provided, however,
that no definitive Bearer Security shall be delivered in exchange for a
temporary Global Security other than in accordance with the provisions of
Sections 3.03 and 3.04.
Upon the exchange of Global Securities for Securities in definitive form,
such Global Securities shall be cancelled by the Trustee. Registered Securities
issued in exchange for a Global Security pursuant to this Section 3.05 shall be
registered in such names and in such authorized denominations, and delivered to
such addresses, as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee in writing. The Trustee shall deliver such Registered
Securities to the Persons in whose names such Securities are so registered or to
the Depositary. The Trustee shall deliver Bearer Securities issued in exchange
for a Global Security pursuant to this Section 3.05 to the Depositary or to the
Persons at such addresses, and in such authorized denominations, as the
Depositary for such Global Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee in writing;
provided, however, that no definitive Bearer Security shall be delivered in
exchange for a temporary Global Security other than in accordance with the
provisions of Sections 3.03 and 3.04.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
exchange shall (if so required by the Company or the Security Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided in the Securities to be registered for transfer
or exchanged, no service charge shall be made for any registration of transfer
or exchange of Securities, but the Company may (unless otherwise provided in
such Securities) require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges expressly provided in
this Indenture to be made at the Company's own expense or without expense or
without charge to Holders.
Neither the Company, the Security Registrar nor any Co-Security Registrar
shall be required (i) to issue, register the transfer of or exchange any
Securities of any series during a period beginning at the opening of business 15
days before the day of selection of Securities of such series to be redeemed and
ending at the close of business on (A) if Securities of the series are issuable
only as Registered Securities, the day of the mailing of the relevant notice of
redemption of Registered Securities of such series so selected for redemption or
(B) if Securities of the series are issuable as Bearer Securities, the day of
the first publication of the relevant notice of redemption or, if Securities of
the series are also issuable as Registered Securities and there is no
publication, the mailing of the relevant notice of redemption, or (ii) to
register the transfer or exchange of any Securities or portions thereof so
selected for redemption.
Page 31
Notwithstanding anything herein to the contrary, the exchange of Bearer
Securities into Registered Securities shall be subject to applicable laws and
regulations in effect at the time of exchange; none of the Company, the Trustee
nor the Security Registrar shall exchange any Bearer Securities into Registered
Securities if it has received an Opinion of Counsel that as a result of such
exchanges the Company would suffer adverse consequences under the United States
federal income tax laws and regulations then in effect and the Company has
delivered to the Trustee a Company Order directing the Trustee not to make such
exchanges unless and until the Trustee receives a subsequent Company Order to
the contrary. The Company shall deliver copies of such Company Orders to the
Security Registrar.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities.
If (i) any mutilated Security or Security with a mutilated coupon is
surrendered to the Trustee or the Security Registrar, or if the Company, the
Trustee and the Security Registrar receive evidence to their satisfaction of the
destruction, loss or theft of any Security or coupon and (ii) there is delivered
to the Company, the Trustee and the Security Registrar such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Company, the Trustee or the Security Registrar that
such Security has been acquired by a bona fide purchaser, the Company shall
execute and upon its request the Trustee shall authenticate and deliver, in lieu
of any such mutilated, destroyed, lost or stolen Security or in exchange for the
Security to which a destroyed, lost or stolen coupon appertains (with all
appurtenant coupons not destroyed, lost or stolen), a new Security of the same
series and Stated Maturity and of like tenor and principal amount, bearing a
number not contemporaneously outstanding and, if applicable, with coupons
corresponding to the coupons appertaining thereto; provided, however, that any
new Bearer Security will be delivered only in compliance with the conditions set
forth in Section 3.05.
In case any such mutilated, destroyed, lost or stolen Security or coupon
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security; provided, however,
that payment of principal of (and premium, if any) and any interest on Bearer
Securities shall be payable only at an office or agency located outside the
United States, and, in the case of interest, unless otherwise specified as
contemplated by Section 3.01, only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security with a destroyed, lost or stolen coupon, shall
constitute an original additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security and its coupons, if any, or the
destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of the same series and their
coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 3.07. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 3.01, interest on any
Registered Security which is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall unless otherwise provided in such
Security be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest. Unless otherwise specified as contemplated by
Section 3.01, in case a Bearer Security of any series is surrendered in exchange
for a Registered Security of such series after the close of business (at an
office or agency referred to in Section 3.05)
Page 32
on any Regular Record Date and before the opening of business (at such office or
agency) on the next succeeding Interest Payment Date, such Bearer Security shall
be surrendered without the coupon relating to such Interest Payment Date and
interest will not be payable on such Interest Payment Date in respect of the
Registered Security issued in exchange for such Bearer Security, but will be
payable only to the Holder of such coupon when due in accordance with the
provisions of this Indenture. At the option of the Company, payment of interest
on any Registered Security may be made by check in the currency designated for
such payment pursuant to the terms of such Registered Security mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register or by wire transfer to an account in such currency designated
by such Person in writing not later than ten days prior to the date of such
payment.
Any interest on any Registered Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of his having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (i) or clause (ii) below.
(i) The Company may elect to make payments of any Defaulted Interest
to the Persons in whose names any such Registered Securities (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Registered Security and the date of the proposed payment, and at
the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 nor less than 10 days prior to
the date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date and, in the
name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class, postage prepaid, to each Holder at his address as
it appears in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names such Registered Securities (or their respective Predecessor
Securities) are registered on such Special Record Date and shall no longer
be payable pursuant to the following clause (ii). In case a Bearer
Security of any series is surrendered at the office or agency in a Place
of Payment for such series in exchange for a Registered Security of such
series after the close of business at such office or agency on any Special
Record Date and before the opening of business at such office or agency on
the related proposed date of payment of Defaulted Interest, such Bearer
Security shall be surrendered without the coupon relating to such proposed
date for payment and Defaulted Interest will not be payable on such
proposed date for payment in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder
of such coupon when due in accordance with the provisions of this
Indenture.
(ii) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities with respect to which there
exists such default may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this clause, such payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of, or in exchange
for, or in lieu of, any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
Page 33
Subject to the limitations set forth in Section 5.02, the Holder of any
coupon appertaining to a Bearer Security shall be entitled to receive the
interest payable on such coupon upon presentation and surrender of such coupon
on or after the Interest Payment Date of such coupon at an office or agency
maintained for such purpose pursuant to Section 5.02.
SECTION 3.08. Persons Deemed Owners.
Title to any Bearer Security, any coupons appertaining thereto and any
temporary Global Security shall pass by delivery.
Prior to due presentment for registration of transfer of any Registered
Security, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of, premium, if
any, and (subject to Section 3.07) interest on such Security, and for all
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of such Security or coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not such Security or coupon be overdue, and neither the Company, the Trustee nor
any agent of the Company or the Trustee shall be affected by notice to the
contrary.
None of the Company, the Trustee, any Paying Agent, any Authenticating
Agent or the Security Registrar will have the responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interest of a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interest, and they
shall be fully protected in acting or refraining from acting on any such
information provided by the Depositary.
SECTION 3.09. Cancellation.
Unless otherwise provided with respect to a series of Securities, all
Securities and coupons surrendered for payment, registration of transfer,
exchange, repayment or redemption shall, if surrendered to any Person other than
the Trustee, be delivered to the Trustee. All Securities so delivered or
surrendered directly to the Trustee for any such purpose shall be promptly
cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all Securities
so delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture or such
Securities. All cancelled Securities or coupons held by the Trustee shall be
destroyed by the Trustee and the Trustee shall deliver a certificate of such
destruction to the Company.
SECTION 3.10. Computation of Interest.
Interest on the Securities of each series shall be computed as shall be
specified as contemplated by Section 3.01.
SECTION 3.11. Forms of Certification.
Unless otherwise provided pursuant to Section 3.01:
(i) Whenever any provision of this Indenture or the forms of
Securities contemplate that certification be given by a Person entitled to
receive a Bearer Security, such certification shall be provided
substantially in the form of Exhibit A hereto, with only such changes as
shall be approved by the Company.
Page 34
(ii) Whenever any provision of this Indenture or the forms of
Securities contemplate that certification be given by Euroclear and CEDEL
S.A. in connection with the exchange of a portion of a temporary Global
Security, such certification shall be provided substantially in the form
of Exhibit B hereto, with only such changes as shall be approved by the
Company.
(iii) Whenever any provision of the Indenture or the forms of
Securities contemplate that certification be given by Euroclear and CEDEL
S.A. in connection with payment of interest with respect to a temporary
Global Security prior to the related Global Exchange Date, such
certification shall be provided substantially in the form of Exhibit C
hereto, with only such changes as shall be approved by the Company.
(iv) Whenever any provision of the Indenture or the forms of
Securities contemplate that certification be given by a beneficial owner
of a portion of a temporary Global Security in connection with payment of
interest with respect to a temporary Global Security prior to the related
Global Exchange Date, such certification shall be provided substantially
in the form of Exhibit D hereto, with only such changes as shall be
approved by the Company.
SECTION 3.12. Judgments
The Company may provide, pursuant to Section 3.01, for the Securities of
any series that, to the fullest extent possible under applicable law and except
as may otherwise be specified as contemplated in Section 3.01, (a) the
obligation, if any, of the Company to pay the principal of (and premium, if any)
and interest of the Securities of any series and any appurtenant coupons in a
Foreign Currency, composite currency or Dollars (the "Designated Currency") as
may be specified pursuant to Section 3.01 is of the essence and agrees that
judgments in respect of such Securities shall be given in the Designated
Currency; (b) the obligation of the Company to make payments in the Designated
Currency of the principal of (and premium, if any) and interest on such
Securities and any appurtenant coupons shall, notwithstanding any payment in any
other currency (whether pursuant to a judgment or otherwise), be discharged only
to the extent of the amount in the Designated Currency that the Holder receiving
such payment may, in accordance with normal banking procedures, purchase with
the sum paid in such other currency (after any premium and cost of exchange) in
the country of issue of the Designated Currency in the case of Foreign Currency
or Dollars or in the international banking community in the case of a composite
currency on the Business Day immediately following the day on which such Holder
receives such payment; (c) if the amount in the Designated Currency that may be
so purchased for any reason falls short of the amount originally due, the
Company shall pay such additional amounts as may be necessary to compensate for
such shortfall; and (d) any obligation of the Company not discharged by such
payment shall be due as a separate and independent obligation and, until
discharged as provided herein, shall continue in full force and effect.
ARTICLE FOUR
Redemption of Securities
SECTION 4.01. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and, except as otherwise
specified as contemplated by Section 3.01 for Securities of any series, in
accordance with this Article.
SECTION 4.02. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities redeemable at the
option of the Company shall be evidenced by an Officers' Certificate. In case of
any redemption at the election of the Company of less than all the Securities of
any series, the Company shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee and the Security Registrar of such Redemption Date
and of the principal amount of Securities of such series to be redeemed. In the
case of any redemption of Securities (i) prior to the expiration of any
restriction on such redemption provided
Page 35
in the terms of such Securities or elsewhere in this Indenture, or (ii) pursuant
to an election of the Company which is subject to a condition specified in the
terms of such Securities, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction or condition.
SECTION 4.03. Selection by Security Registrar of Securities to be Redeemed.
If less than all the Securities of any series with the same terms are to
be redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Security Registrar from the
Outstanding Securities of such series having such terms not previously called
for redemption, by such method as the Security Registrar shall deem fair and
appropriate and which may provide for the selection for redemption of portions
of the principal amount of Securities of such series of a denomination equal to
or larger than the minimum authorized denomination for Securities of such
series. Unless otherwise provided by the terms of the Securities of any series
so selected for partial redemption, the portions of the principal of Securities
of such series so selected for partial redemption shall be, in the case of
Registered Securities, equal to $1,000 or an integral multiple thereof or, in
the case of Bearer Securities, equal to $5,000 or an integral multiple thereof,
and the principal amount of any such Security which remains outstanding shall
not be less than the minimum authorized denomination for Securities of such
series.
The Security Registrar shall promptly notify the Company, the Trustee and
the Co-Security Registrar, if any, in writing of the Securities selected for
redemption and, in the case of any Security selected for partial redemption, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Security redeemed or to be redeemed only in part, to the portion of
the principal of such Security which has been or is to be redeemed.
SECTION 4.04. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
1.06, not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed.
All notices of redemption shall state:
(i) the Redemption Date,
(ii) the Redemption Price,
(iii) if less than all Outstanding Securities of any series having
the same terms are to be redeemed, the identification (and, in the case of
partial redemption, the respective principal amounts) of the particular
Securities to be redeemed,
(iv) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security to be redeemed, and that interest,
if any, thereon shall cease to accrue on and after said date,
(v) the place or places where such Securities, together in the
case of Bearer Securities with all remaining coupons appertaining thereto,
if any, maturing after the Redemption Date, are to be surrendered for
payment of the Redemption Price,
(vi) that the redemption is for a sinking fund, if such is the
case, and
(vii) the CUSIP number or the Euroclear or the CEDEL reference
number (or any other number used by a Depositary to identify such
Securities), if any, of the Securities to be redeemed.
A notice of redemption published as contemplated by Section 1.06 need not
identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, on Company Request, by the Trustee in
the name and at the expense of the Company.
Page 36
SECTION 4.05. Deposit of Redemption Price.
At or prior to the opening of business on any Redemption Date, the Company
shall deposit or cause to be deposited with the Trustee or with a Paying Agent
(or, if the Company is acting as its own Paying Agent, segregate and hold in
trust as provided in Section 5.03) an amount of money sufficient to pay the
Redemption Price of all the Securities which are to be redeemed on that date;
provided, however, that deposits with respect to Bearer Securities shall be made
with a Paying Agent or Paying Agents located outside the United States except as
otherwise provided in Section 5.02, unless otherwise specified as contemplated
by Section 3.01.
SECTION 4.06. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified and from and after such date (unless the
Company shall default in the payment of the Redemption Price) such Securities
shall cease to bear interest and the coupons for such interest appertaining to
any Bearer Securities so to be redeemed, except to the extent provided below,
shall be void. Upon surrender of any such Securities for redemption in
accordance with said notice, such Securities shall be paid by the Company at the
Redemption Price; provided, however, that instalments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States and,
unless otherwise specified as contemplated by Section 3.01, only upon
presentation and surrender of coupons for such interest. Instalments of interest
on Registered Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such on the close of business on the
relevant Regular Record Dates according to their terms and the provisions of
Section 3.07.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall surrender
to the Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted; provided, however, that interest
represented by coupons shall be payable only at an office or agency located
outside the United States and, unless otherwise specified as contemplated by
Section 3.01, only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be paid upon surrender
thereof for redemption, the principal shall, until paid, bear interest from the
Redemption Date at the rate borne by such Security, or as otherwise provided in
such Security.
SECTION 4.07. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at
the office or agency of the Company in a Place of Payment therefor (with, if the
Company or the Security Registrar so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder of such Security or his attorney duly
authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities of the same series and Stated Maturity, containing
identical terms and conditions, of any authorized denominations as requested by
such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
SECTION 4.08. Redemption Suspended During Event of Default.
The Trustee shall not redeem any Securities (unless all Securities then
Outstanding are to be redeemed) or commence the giving of any notice of
redemption of Securities during the continuance of any Event of Default
Page 37
known to the Trustee, except that where the giving of notice of redemption of
any Securities shall theretofore have been made, the Trustee shall, subject to
the provisions of Section 14.04, redeem such Securities, provided funds are
deposited with it for such purpose. Subject to the rights of the holders of
Senior Indebtedness and creditors in respect of General Obligations, except as
aforesaid, any moneys theretofore or thereafter received by the Trustee shall,
during the continuance of such Event of Default, be held in trust for the
benefit of the Holders and applied in the manner set forth in Section 7.06;
provided, however, that in case such Event of Default shall have been waived as
provided herein or otherwise cured, such moneys shall thereafter be held and
applied in accordance with the provisions of this Article.
ARTICLE FIVE
COVENANTS
SECTION 5.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of, premium, if
any, and interest on the Securities of such series in accordance with the terms
of the Securities of such series, any coupons appertaining thereto and this
Indenture. Unless otherwise specified as contemplated by Section 3.01 with
respect to any series of Securities, any interest due on Bearer Securities on or
before Maturity shall be payable only outside the United States upon
presentation and surrender of the several coupons for such interest instalments
as are evidenced thereby as they severally mature.
SECTION 5.02. Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered Securities, the
Company will maintain in each Place of Payment for any series of Securities an
office or agency where Securities of that series may be presented or surrendered
for payment, where Securities of that series may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and of
any change in the location, of such office or agency. If Securities of a series
may be issuable as Bearer Securities, the Company will maintain (A) in the
Borough of Manhattan, The City of New York an office or agency where any
Registered Securities of that series may be presented or surrendered for
payment, where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered for
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served, (B) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
which is located outside the United States, an office or agency where Securities
of that series and related coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on Securities of that
series pursuant to Section 5.04); provided, however, that if the Securities of
that series are listed on The International Stock Exchange of the United Kingdom
and the Republic of Ireland Limited or the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, the Company will maintain a Paying Agent for the Securities of
that series in London or Luxembourg or any other required city located outside
the United States, as the case may be, so long as the Securities of that series
are listed on such exchange, and (C) subject to any laws or regulations
applicable thereto, in a Place of Payment for such series located outside the
United States an office or agency where any Registered Securities of that series
may be surrendered for registration of transfer, where Securities of that series
may be surrendered for exchange and where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be
served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of any such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
in respect of any series of Securities or shall fail to furnish the Trustee with
the address thereof, such presentations, and surrenders of Securities of that
series may be made and notices and demands may be made or served at the
Principal Corporate Trust Office of the Trustee, except that Bearer Securities
of that series and the related coupons may be presented and surrendered for
payment (including payment of any additional amounts
Page 38
payable on Bearer Securities of that series pursuant to Section 5.04) at the
place specified for the purpose as contemplated by Section 3.01, and the Company
hereby appoints the Trustee as its agent to receive such respective
presentations, surrenders, notices and demands.
Except as otherwise provided in the form of Bearer Security of any
particular series pursuant to the provisions of this Indenture, no payment of
principal, premium or interest on Bearer Securities shall be made at any office
or agency of the Company in the United States or by check mailed to any address
in the United States or by transfer to an account maintained with a bank located
in the United States; provided, however, payment of principal of and any premium
and interest denominated in Dollars (including additional amounts payable in
respect thereof) on any Bearer Security may be made at an office or agency of,
and designated by, the Company located in the United States if (but only if)
payment of the full amount of such principal, premium, interest or additional
amounts in Dollars at all offices outside the United States maintained for the
purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or similar restrictions and the
Trustee receives an Opinion of Counsel that such payment within the United
States is legal. Unless otherwise provided as contemplated by Section 3.01 with
respect to any series of Securities, at the option of the Holder of any Bearer
Security or related coupon, payment may be made by check in the currency
designated for such payment pursuant to the terms of such Bearer Security
presented or mailed to an address outside the United States or by transfer to an
account in such currency maintained by the payee with a bank located outside the
United States.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all of such purposes specified above in this Section and
may constitute and appoint one or more Paying Agents for the payment of such
Securities, in one or more other cities, and may from time to time rescind such
designations and appointments; provided, however, that no such designation,
appointment or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency. Unless and until the Company
rescinds one or more such appointments, the Company hereby appoints: (i) The
Chase Manhattan Bank (National Association), as its Paying Agent in The City of
New York with respect to all series of Securities having a Place of Payment in
The City of New York and (ii) the Bank at its principal office as its Paying
Agent in the City of Chicago with respect to all series of Securities having a
Place of Payment in the City of Chicago.
Section 5.03. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent for any
series of Securities, it will, on or before each due date of the principal of,
premium, if any, or interest on any of the Securities of such series and any
appurtenant coupons, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal, premium or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided, and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities, it will, at or prior to the opening of business on each due date
of the principal of, premium, if any, or interest on any Securities of such
series and any appurtenant coupons, deposit with a Paying Agent a sum sufficient
to pay the principal, premium or interest so becoming due, such sum to be held
in trust for the benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee for any
series of Securities to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee subject to the provisions
of this Section, that such Paying Agent will
Page 39
(i) hold all sums held by it for the payment of principal of,
premium, if any, or interest on Securities of such series and any
appurtenant coupons in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(ii) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any
payment of principal, premium or interest on the Securities of such series
or any appurtenant coupons; and
(iii) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payments by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of, premium, if any, or
interest on any Security of any series or any appurtenant coupons and remaining
unclaimed for two years after such principal, premium or interest has become due
and payable shall be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the Holder of such
Security or any coupon appertaining thereto shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in an Authorized Newspaper in each Place of Payment, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 5.04. Additional Amounts.
If the Securities of a series provide for the payment of additional
amounts, the Company will pay to the Holder of any Security of any series or any
coupon appertaining thereto additional amounts as provided therein. Whenever in
this Indenture there is mentioned, in any context, the payment of the principal
of (or premium, if any) or interest on, or in respect of, any Security of any
series or payment of any related coupon or the net proceeds received on the sale
or exchange of any Security of any series, such mention shall be deemed to
include mention of the payment of additional amounts provided for in this
Section to the extent that, in such context, additional amounts are, were or
would be payable in respect thereof pursuant to the provisions of this Section
and express mention of the payment of additional amounts (if applicable) in any
provisions hereof shall not be construed as excluding additional amounts in
those provisions hereof where such express mention is not made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal (and
premium, if any) is made), and at least 10 days prior to each date of payment of
principal (and premium, if any) or interest if there has been any change with
respect to the matters set forth in the below-mentioned Officers' Certificate,
the Company will furnish the Trustee and the Company's Principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of (and premium, if any) or interest on the Securities of
that series shall be made to Holders of Securities of that series or any related
coupons who are United States Aliens without withholding for or on account of
any tax, assessment or other governmental charge described in the Securities of
that series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any,
Page 40
required to be withheld on such payments to such Holders of Securities or
coupons and the Company will pay to the Trustee or such Paying Agent the
additional amounts required by this Section. The Company covenants to indemnify
the Trustee and any Paying Agent for, and to hold them harmless against, any
loss, liability or expense reasonably incurred without negligence or bad faith
on their part arising out of or in connection with actions taken or omitted by
any of them in reliance on any Officers' Certificate furnished pursuant to this
Section.
SECTION 5.05. Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company, an Officers' Certificate (provided, however,
that one of the signatories of which shall be the Company's principal executive
officer, principal financial officer or principal accounting officer) stating,
as to each signer thereof, that
(i) a review of the activities of the Company during such year and
of performance under this Indenture and under the terms of the Securities
has been made under his supervision; and
(ii) to the best of his knowledge, based on such review, (a) the
Company has fulfilled all its obligations and complied with all conditions
and covenants under this Indenture and under the terms of the Securities
throughout such year, or, if there has been a default in the fulfillment
of any such obligation, condition or covenant specifying each such default
known to him and the nature and status thereof, and (b) no event has
occurred and is occurring which is, or after notice or lapse of time or
both would become, a Default, or if such an event has occurred and is
continuing, specifying such event known to him and the nature and status
thereof.
For purposes of this Section, compliance or default shall be determined
without regard to any period of grace or requirement of notice provided for
herein.
SECTION 5.06. Maintenance of Corporate Existence, Rights and Franchises.
So long as any of the Securities shall be Outstanding, the Company will do
or cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence, rights and franchises to carry on its business;
provided, however, that nothing in this Section 5.06 shall prevent (i) any
consolidation or merger of the Company, or any conveyance or transfer of its
property and assets substantially as an entirety to any person, permitted by
Article Ten, or (ii) the liquidation or dissolution of the Company after any
conveyance or transfer of its property and assets substantially as an entirety
to any person permitted by Article Ten.
ARTICLE SIX
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 6.01. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee (i)
semiannually, not more than 10 days after each February 1 and August 1, a list,
in such form as the Trustee may reasonably require, containing all the
information in the possession or control of the Company, any of its Paying
Agents (other than the Trustee) or the Security Registrar, if other than the
Trustee, as to the names and addresses of the Holders of Securities as of such
February 1 and August 1, and (ii) at such other times as the Trustee may request
in writing, within 30 days after receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior to the
time such list is requested to be furnished; provided, however, that if and so
long as the Trustee is the Security Registrar for Securities of a series, no
such list need be furnished with respect to such Series of Securities.
Page 41
SECTION 6.02. Preservation of Information; Communications to Holders.
(i) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Securities contained in the
most recent list furnished to the Trustee as provided in Section 6.01 and the
names and addresses of Holders of Securities received by the Trustee in its
capacity as the Security Registrar, if so acting. The Trustee may destroy any
list furnished to it as provided in Section 6.01 upon receipt of a new list so
furnished.
(ii) If three or more Holders of Securities of any series (hereinafter
referred to as "applicants") apply in writing to the Trustee, and furnish to the
Trustee reasonable proof that each such applicant has owned a Security of such
series for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders of Securities of such series or with the Holders
of all Securities with respect to their rights under this Indenture or under
such Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee shall,
within five Business Days after the receipt of such application, at its
election, either
(a) afford such applicants access to the information preserved at
the time by the Trustee in accordance with Section 6.02(i), or
(b) inform such applicants as to the approximate number of Holders
of Securities of such series or all Securities, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Trustee in accordance with Section 6.02(i), and as to the approximate cost
of mailing to such Holders the form of proxy or other communication, if
any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of a Security of such series or all Holders of Securities,
as the case may be, whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section 6.02(i), a copy
of the form of proxy or other communication which is specified in such request,
with reasonable promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the reasonable expenses
of mailing, unless, within five days after such tender, the Trustee shall mail
to such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interests of the Holders
of Securities of such series or all Securities, as the case may be, or would be
in violation of applicable law. Such written statement shall specify the basis
of such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies of
such material to all such Holders of Securities with reasonable promptness after
the entry of such order and the renewal of such tender; otherwise, the Trustee
shall be relieved of any obligation or duty to such applicants respecting their
application.
(iii) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
shall be held accountable by reason of the disclosure of any such information as
to the names and addresses of the Holders of Securities in accordance with
Section 6.02(ii), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under Section 6.02(ii).
SECTION 6.03. Reports by Trustee.
(i) Within 60 days after May 1 of each year commencing with the year
1996, the Trustee shall mail to each Holder reports concerning the Trustee and
its action under the Indenture as may be required pursuant to the Trust
Indenture Act if and to the extent and in the manner provided pursuant thereto.
Page 42
(ii) Reports pursuant to this Section shall be transmitted by mail (1) to
all Holders of Registered Securities, as their names and addresses appear in the
Security Register and (2) to such Holders of Bearer Securities as have, within
the two years preceding such transmission, filed their names and addresses with
the Trustee for that purpose, and (3) except in the cases of reports under
Section 313(b)(2) of the Trust Indenture Act, to each Holder of a Security of
any series whose name and address appear in the information preserved at the
time by the Trustee in accordance with Section 6.02(i).
(iii) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each securities exchange upon which any
Securities are listed, and also with the Commission. The Company will notify the
Trustee when any Securities are listed on any securities exchange.
SECTION 6.04. Reports by Company.
The Company will:
(i) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) which the Company may be required
to file with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to
file information, documents or reports pursuant to either of said
Sections, then it will file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents
and reports which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
(ii) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance
by the Company with the conditions and covenants of this Indenture as may
be required from time to time by such rules and regulations; and
(iii) transmit by mail to Holders of Securities, in the manner and
to the extent provided in Section 6.03(ii), within 30 days after the
filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (i) and (ii) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
ARTICLE SEVEN
REMEDIES
SECTION 7.01. Events of Default.
"Event of Default", with respect to any series of Securities, wherever
used herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless it is either inapplicable to a particular series or it is specifically
deleted or modified in the supplemental indenture or Board Resolution under
which such series of Securities is issued or in the form of Security for such
series:
(i) the entry of a decree or order by a court having jurisdiction
in the premises granting relief in respect of the Company in an
involuntary case under the Federal Bankruptcy Code, adjudging the Company
a bankrupt, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Company under the Federal Bankruptcy Code or any other applicable
Federal or State bankruptcy, insolvency or other similar law, or
appointing a receiver (or other similar official) of the Company, or of
substantially all of its properties, or ordering the winding up or
liquidation
Page 43
of its affairs under any such law, and the continuance of any such decree
or order unstayed and in effect for a period of 60 consecutive days; or
(ii) the institution by the Company of proceedings to be
adjudicated a bankrupt, or the consent of the Company to the institution
of bankruptcy proceedings against it, or the filing by the Company of a
petition or answer or consent seeking reorganization or relief under the
Federal Bankruptcy Code or any other applicable Federal or State
bankruptcy, insolvency or similar law, or the consent by the Company to
the filing of any such petition or to the appointment of a receiver,
liquidator, custodian, assignee, trustee, sequestrator (or other similar
official) of the Company, or of substantially all of its properties under
any such law; or
(iii) any other Event of Default provided with respect to Securities
of that series.
SECTION 7.02. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to any series of Securities for which
there are Securities Outstanding occurs and is continuing, then, and in every
such case, the Trustee or the Holders of not less than 25% in principal amount
of the Outstanding Securities of such series may declare the principal of all
the Securities of such series (or, if the Securities of that series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of that series) to be immediately due and payable, by a
notice in writing to the Company (and to the Trustee if given by Holders), and
upon any such declaration the same shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of such series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(i) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(a) all overdue instalments of interest on all Securities of
such series,
(b) the principal of and premium, if any, on any Securities
of such series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or
rates prescribed therefor by the terms of the Securities of such
series,
(c) to the extent that payment of such interest is lawful,
interest upon overdue instalments of interest at the rate or rates
prescribed therefor by the terms of the Securities of such series,
and
(d) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of
the Trustee, the Security Registrar, any Paying Agent, and their
agents and counsel and all other amounts due the Trustee under
Section 8.07 and
(ii) all other Defaults with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 7.13.
No such recission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 7.03. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(i) default is made in the payment of any instalment of interest
on any Security of any series when such interest becomes due and payable
and such default continues for a period of 30 days, or
(ii) default is made in the payment of the principal of or premium,
if any, on any Security of any series at the Maturity thereof,
Page 44
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holder of any such Security or coupon appertaining thereto, if any, the whole
amount then due and payable on any such Security or coupon for principal,
premium, if any, and interest, with interest upon the overdue principal and
premium, if any, and (to the extent that payment of such interest shall be
lawful) upon overdue instalments of interest, at the rate or rates prescribed
therefor by the terms of any such Security; and, in addition thereto, such
further amount as shall be sufficient to cover the reasonable costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel and any other amounts due
the Trustee under Section 8.07.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If a Default with respect to any series of Securities occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 7.04. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of 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 on
the Company for the payment of overdue principal, premium, if any, or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount of principal,
premium, if any, and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts due
the Trustee under Section 8.07) and of the Holders allowed in such
judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same,
and any receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Holder to
make such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 8.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder of a Security or
coupon in any such proceeding.
Page 45
SECTION 7.05. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or under the
Securities of any series, or coupons (if any) appertaining thereto, may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities of such series or coupons appertaining thereto or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and any other amounts due the Trustee under Section 8.07,
be for the ratable benefit of the Holders of the Securities of such series and
coupons appertaining thereto in respect of which such judgment has been
recovered.
SECTION 7.06. Application of Money Collected.
Any money collected by the Trustee with respect to a series of Securities
pursuant to this Article shall be applied in the following order, at the date or
dates fixed by the Trustee, and, in case of the distribution of such money on
account of principal, premium, if any, or interest, upon presentation of the
Securities of such series or coupons appertaining thereto, if any, or both, as
the case may be, and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
8.07;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities of such series and coupons for principal, premium, if any, and
interest, in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on Securities of such series and
coupons, if any, for principal, premium, if any, and interest,
respectively. The Holders of each series of Securities denominated in ECU,
any other composite currency or a Foreign Currency and any matured coupons
relating thereto shall be entitled to receive a ratable portion of the
amount determined by the Exchange Rate Agent by converting the principal
amount Outstanding of such series of Securities and matured but unpaid
interest on such series of Securities in the currency in which such series
of Securities is denominated into Dollars at the Exchange Rate as of the
date of declaration of acceleration of the Maturity of the Securities; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 7.07. Limitation on Suits.
No Holder of any Security of any series or any related coupons shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(i) such Holder has previously given written notice to the Trustee
of a continuing Default with respect to Securities of such series;
(ii) the Holders of not less than a majority in principal amount of
the Outstanding Securities of such series shall have made written request
to the Trustee to institute proceedings in respect of such Default in its
own name as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(v) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of such series;
it being understood and intended that no one or more Holders of Securities of
such series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holders of Securities of such series or to obtain or to seek
to obtain priority or preference
Page 46
over any other such Holders or to enforce any right under this Indenture, except
in the manner herein provided and for the equal and ratable benefit of all the
Holders of Securities of such series.
The following events shall be "Defaults" with respect to any series of
Securities under this Indenture:
(a) an Event of Default with respect to such series specified in
Section 7.01; or
(b) default in the payment of the principal of or premium, if any,
on any Security of such series at its Maturity; or
(c) default in the payment of any interest upon any Security 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
(d) failure on the part of the Company duly to observe or perform
any of the other covenants or agreements on its part in the Securities of
such series or in this Indenture and continuance of such failure for a
period of sixty days after the date on which written notice of such
failure, requiring the Company to remedy the same and stating that such
notice is a "Notice of Default" hereunder, shall have been given by
registered mail to the Company by the Trustee, or to the Company and the
Trustee by the holders of at least 25% in aggregate principal amount of
the Securities of such series at the time Outstanding, or
(e) any other Default provided with respect to Securities of that
Series.
SECTION 7.08. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security or coupon shall have the right, which is absolute and unconditional, to
receive payment of the principal of, premium, if any, and (subject to Section
3.07) interest on such Security or payment of such coupon on the respective
Stated Maturities expressed in such Security or coupon (or, in the case of
redemption or repayment on the Redemption Date or Repayment Date) and to
institute suit for the enforcement of such payment, and such rights shall not be
impaired without the consent of such Holder.
SECTION 7.09. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or coupon has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Trustee and the Holders shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 7.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, lost, destroyed or stolen Securities or coupons in the last paragraph
of Section 3.06, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 7.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security or
coupon to exercise any right or remedy accruing upon any Default shall impair
any such right or remedy or constitute a waiver of any such Default or an
acquiesence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
Page 47
SECTION 7.12. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such series, provided that
(i) such direction shall not be in conflict with any rule of law
or with this Indenture,
(ii) the Trustee shall not determine that the action so directed
would be unjustly prejudicial to the Holders not taking part in such
direction,
(iii) subject to the provisions of Section 8.01, the Trustee shall
have the right to decline to follow any such direction if the Trustee in
good faith shall, by a Responsible Officer or Officers of the Trustee,
determine that the proceeding so directed would involve the Trustee in
personal liability, and
(iv) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 7.13. Waiver of Past Defaults.
The Holders of a majority in principal amount of the Outstanding
Securities of any series may on behalf of the Holders of all the Securities of
such series waive any past default hereunder and its consequences, except a
default not theretofore cured
(i) in the payment of the principal of, premium, if any, or
interest on any Security of such series, or
(ii) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Default
or Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of the Securities of such series under this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
SECTION 7.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series, or to any suit instituted by
any Holder of Securities or coupons for the enforcement of the payment of the
principal of, premium, if any, or interest on any Security or payment of any
coupon on or after the respective Stated Maturities expressed in such Security
or coupon (or, in the case of redemption or repayment, on or after the
Redemption Date or Repayment Date).
SECTION 7.15. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extention law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
Page 48
ARTICLE EIGHT
THE TRUSTEE
SECTION 8.01. Certain Duties and Responsibilities.
(i) Except during the continuance of a Default with respect to any
series of Securities,
(a) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture with respect to
Securities of such series, and no implied covenants or obligations shall
be read into this Indenture against the Trustee with respect to such
series; and
(b) in the absence of bad faith on its part, the Trustee may
conclusively rely with respect to such series, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificate 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 as to form to the
requirements of the Indenture.
(ii) In case a Default with respect to any series of Securities has
occurred and is continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture with respect to such series, 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.
(iii) 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) this Subsection shall not be construed to limit the effect of
Subsection (i) of this Section;
(b) the Trustee shall not be liable for any error or judgment made
in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to Securities of such series; and
(d) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(iv) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 8.02. Notice of Default.
Within 90 days after the occurrence of any default hereunder with respect
to Securities of any series, the Trustee shall transmit by mail to all Holders
of Securities of such series entitled to receive reports pursuant to Section
6.03(ii) notice of such default hereunder known to the Trustee, unless such
default shall have been cured or waived; provided, however, that, except in the
case of a default in the payment of the principal of, premium, if any, or
interest on any Security of such series, or any related coupons or in the
payment of any sinking fund instalment with respect to Securities of 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
and/or Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of Securities of
such series; and provided, further, that in the case of any default of the
character
Page 49
specified in Section 7.07(d) with respect to Securities of such series, no such
notice to Holders of Securities of such series shall be given until at least 30
days after the occurrence thereof. For the purpose of this Section, the term
"default", with respect to Securities of any series, means any event which is,
or after notice or lapse of time, or both, would become, a Default or an Event
of Default with respect to Securities of such series.
SECTION 8.03. Certain Rights of Trustee.
Except as otherwise provided in Section 8.01:
(i) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, note or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(ii) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(iii) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(iv) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(v) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(vi) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, security or other paper or document, but the Trustee, in its
discretion, may make further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney and, if so requested to do so by any of the Holders, at the sole
cost and expense of the Holders;
(vii) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(viii) in the event that the Trustee is also acting as Paying Agent,
Authenticating Agent or Security Registrar hereunder, the rights and
protections afforded to the Trustee pursuant to this Article Eight shall
also be afforded to such Paying Agent, Authenticating Agent or Security
Registrar.
SECTION 8.04. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
Page 50
SECTION 8.05. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, the Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
8.08 and 8.13, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 8.06. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed in writing with the Company.
SECTION 8.07. Compensation and Reimbursement.
The Company agrees
(i) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(ii) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence
or bad faith; and
(iii) to indemnify the 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 trust, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of, premium, if any, or interest on
particular Securities.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 7.01, the expenses (including the
reasonable fees and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of administration under any
applicable bankruptcy, insolvency or other similar law.
The obligations of the Company set forth in this Section 8.07 and any lien
arising hereunder shall survive the resignation or removal of any Trustee, the
discharge of the Company's obligations pursuant to Article Eleven of this
Indenture, the termination of this Indenture and the repayment of the Securities
whether at the Stated Maturity or otherwise.
SECTION 8.08. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of Section 310 of the Trust Indenture Act, the Trustee shall either
eliminate such conflicting interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and this
Indenture. To the extent permitted by the Trust Indenture Act, the Trustee shall
not be deemed to have a conflicting interest with respect to the Securities of
any series by virtue of being Trustee with respect to the Securities of any
particular series of Securities other than that series or by virtue of being
trustee under the Indenture dated as of July 15, 1992, between the Company and
the Trustee.
Page 51
SECTION 8.09. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee with respect to each series of
Securities hereunder which shall be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $5,000,000, subject to
supervision or examination by Federal or State authority, provided, however,
that if Section 310(a) of the Trust Indenture Act or the rules and regulations
of the Commission under the Trust Indenture Act at any time permit a corporation
organized and doing business under the laws of any other jurisdiction to serve
as trustee of an indenture qualified under the Trust Indenture Act, this Section
8.09 shall be automatically deemed amended to permit a corporation organized and
doing business under the laws of any such jurisdiction to serve as Trustee
hereunder. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
Neither the Company nor any person directly or indirectly controlling,
controlled by or under common control with the Company may serve as Trustee. If
at any time the Trustee with respect to any series of Securities shall cease to
be eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 8.10. Resignation and Removal; Appointment of Successor.
(i) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 8.11.
(ii) The Trustee may resign with respect to any series of Securities at
any time by giving written notice thereof to the Company. If an instrument of
acceptance by a successor Trustee shall not have been delivered to the resigning
Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to Securities of such series.
(iii) The Trustee may be removed with respect to any series of Securities
at any time by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
(iv) If at any time:
(a) the Trustee shall fail to comply with Section 8.08 with
respect to any series of Securities after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Security of
such series for at least six months, or
(b) the Trustee shall cease to be eligible under Section 8.09 with
respect to any series of Securities and shall fail to resign after written
request therefor by the Company or by any Holder of Securities of such
series, or
(c) 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 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, (1) the Company by a Board Resolution may remove the
Trustee with respect to such series, or (2) subject to Section 7.14, any Holder
who has been a bona fide Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee with respect to such series.
Page 52
(v) If the Trustee shall resign, be removed or become incapable of
acting with respect to any series of Securities, or if a vacancy shall occur in
the office of Trustee with respect to any series of Securities for any cause,
the Company, by a Board Resolution, shall promptly appoint a successor Trustee
or Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there shall
be only one Trustee with respect to the Securities of any particular series) and
shall comply with the applicable requirements of Section 8.11. If, within one
year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to such series of Securities shall be
appointed by the Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee with respect to such series, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
with respect to such series and to that extent supersede the successor Trustee
appointed by the Company with respect to such series. If no successor Trustee
with respect to such series shall have been so appointed by the Company or the
Holders of Securities of such series and accepted appointment in the manner
hereinafter provided, any Holder who has been a bona fide Holder of a Security
of such series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to such series.
(vi) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Registered Securities of such series as their names and addresses
appear in the Security Register and, if Securities of such series are issuable
as Bearer Securities, by publishing notice of such event once in an Authorized
Newspaper in each place of payment located outside the United States. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Principal Corporate Trust
Office.
SECTION 8.11. Acceptance of Appointment by Successor.
(i) In the case of the appointment hereunder of a successor Trustee with
respect to any series of Securities, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective with respect to all or
any series as to which it is resigning as Trustee, and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to all or
any such series; but, on request of the Company or such successor Trustee, such
retiring Trustee shall upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of such retiring Trustee with respect to all or any such series; and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder with respect to all or any
such series, subject nevertheless to its lien, if any, provided for in Section
8.07.
(ii) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (a) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (b)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(c) 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
Page 53
Trustees co-trustees of the same trust and that each such Trustee shall be
trustee of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee; and upon the execution
and delivery of such supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein and each
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the Company or
any successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates, subject nevertheless to
its lien, if any, provided for in Section 8.07.
(iii) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
Paragraph (i) or (ii) of this Section, as the case may be.
(iv) No successor Trustee with respect to a series of Securities shall accept
its appointment unless at the time of such acceptance such successor Trustee
shall be qualified and eligible with respect to such series under this Article.
SECTION 8.12. 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 all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 8.13. Preferential Collection of Claims against Company.
If and when the Trustee shall be or become a creditor of the Company (or any
other obligor upon the Securities), the Trustee shall be subject to the
provisions of Section 311 of the Trust Indenture Act regarding the collection of
such claims against the Company (or any such other obligor). A Trustee that has
resigned or been removed shall be subject to and comply with said Section 311 to
the extent required thereby.
SECTION 8.14. Appointment of Authenticating Agents.
The Trustee may appoint an Authenticating Agent or Agents, which may include
any Affiliate of the Company, with respect to one or more series of Securities.
Such Authenticating Agent or Agents at the option of the Trustee shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon original issuance, exchange, registration of transfer or
partial redemption thereof or pursuant to Section 3.06, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Whenever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication or the delivery of Securities to the Trustee for authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent, a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent and delivery of
Securities to the Authenticating Agent on behalf of the Trustee. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating
Page 54
Agent, having a combined capital and surplus of not less than $5,000,000 and
subject to supervision or examination by Federal or State authority.
Notwithstanding the foregoing, an Authenticating Agent located outside the
United States may be appointed by the Trustee if previously approved in writing
by the Company and if such Authenticating Agent meets the minimum capitalization
requirements of this Section 8.14. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which such Authenticating Agent shall be
a party, or any corporation succeeding to the corporate agency or corporate
trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time (and upon
request by the Company shall) terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company.
Upon receiving such a notice of resignation or upon such termination, or in case
at any time such Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
If an appointment with respect to one or more series is made pursuant to this
Section, the Securities of such series may have endorsed thereon, in addition to
the Trustee's certificate of authentication, an alternate certificate of
authentication in the following form:
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
The Chase Manhattan Bank (National
Association), as Trustee
By____________________________________
As Authenticating Agent
By____________________________________
Authorized Officer
Page 55
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holder of any Securities or coupons, the Company,
when authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(i) to evidence the succession of another corporation or Person to the
Company, and the assumption by any such successor of the covenants of the
Company herein and in the Securities contained; or
(ii) to evidence and provide for the acceptance of appointment by another
corporation as a successor Trustee hereunder with respect to one or more
series of Securities and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to
Section 8.11; or
(iii) to add to the covenants of the Company, for the benefit of the
Holders of Securities of all or any series of Securities or coupons (and if
such covenants are to be for the benefit of less than all series of
Securities or coupons, stating that such covenants are expressly being
included solely for the benefit of such series), or to surrender any right or
power herein conferred upon the Company; or
(iv) to cure any ambiguity, to correct or supplement any provision herein
which may be inconsistent with any other provision herein, or to make any
other provisions with respect to matters or questions arising under the
Indenture, provided that such action shall not adversely affect the interests
of the Holders of Securities of any series or any related coupons in any
material respect; or
(v) to add any additional Defaults or Events of Default with respect to
all or any series of the Securities (and, if such Defaults or Event of
Default is applicable to less than all series of Securities, specifying the
series to which such Default or Event of Default is applicable); or
(vi) to add to, change or eliminate any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of (or premium, if any) or any interest on Bearer Securities, to
permit Bearer Securities to be issued in exchange for Registered Securities,
to permit Bearer Securities to be issued in exchange for Bearer Securities of
other authorized denominations or to permit or facilitate the issuance of
Securities in uncertificated form, provided any such action shall not
adversely affect the interests of the Holders of Securities of any series or
any related coupons in any material respect; or
(vii) to add to, change or eliminate any of the provisions of this
Indenture, provided that any such addition, change or elimination (a) shall
become effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
adversely affected by such change in or elimination of such provision or (b)
shall not apply to any Securities Outstanding; or
(viii) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 3.01; or
(ix) to add to or change any provisions of this Indenture to such extent
as shall be necessary to permit or facilitate the issuance of Securities
convertible into other securities; or
(x) to evidence any changes to Section 8.09 as permitted by the terms
thereof; or
(xi) to add to or change or eliminate any provision of this Indenture as
shall be necessary or desirable in accordance with any amendments to the
Trust Indenture Act, provided such action shall not adversely affect the
interest of Holders of Securities of any series or any appurtenant coupons in
any material respect.
SECTION 9.02. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of all series affected by such
supplemental indenture or indentures (acting as one class), by Act of
Page 56
said Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders of Securities of each such
series and any related coupons under this Indenture; provided, however, that no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby;
(i) change the Maturity of the principal of, or the Stated Maturity of any
instalment of interest (or premium, if any) on, any Security, or reduce the
principal amount thereof or any premium thereon or the rate of interest
thereon, or change the obligation of the Company to pay additional amounts
pursuant to Section 5.04 (except as contemplated by Section 10.01 (i) and
permitted by Section 9.01), or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 7.02,
or change the method of calculating interest thereon or the coin or currency
in which any Security (or premium, if any, thereon) or the interest thereon
is payable, or reduce the minimum rate of interest thereon, or impair the
right to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption or repayment, on
or after the Redemption Date or Repayment Date);
(ii) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or of
certain defaults hereunder and their consequences) provided for in this
Indenture or reduce the requirements of Section 16.04 for a quorum;
(iii) change any obligation of the Company to maintain an office or agency
in the places and for the purposes specified in Section 5.02; or
(iv) modify any of the provisions of this Section or Section 7.13, except
to increase any such percentage or to provide that certain other provisions
of this Indenture cannot be modified or waived.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included soley for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 8.01) shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by and complies with this Indenture. The Trustee may,
but shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, liabilities, duties or immunities under this
Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 9.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform
to the requirements of the TIA as then in effect.
Page 57
SECTION 9.06. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall, if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
SECTION 9.07. Subordination Unimpaired.
No supplemental indenture executed pursuant to this Article shall directly or
indirectly modify the provisions of Article Fourteen in any manner which might
alter the subordination of the Securities.
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 10.01. Company May Consolidate, etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other corporation or
convey or transfer its properties and assets substantially as an entirety to any
Person, unless
(i) the corporation formed by such consolidation or into which the Company
is merged or the Person which acquires by conveyance or transfer the
properties and assets of the Company substantially as an entirety shall
expressly assume, by an indenture supplemental hereto, executed and delivered
to the Trustee, in form satisfactory to the Trustee, the due and punctual
payment of the principal of, premium, if any, and interest (including all
additional amounts, if any, payable pursuant to Section 5.04) on all the
Securities and the performance of every covenant of this Indenture on the
part of the Company to be performed or observed;
(ii) immediately after giving effect to such transaction, no Default, and
no event which, after notice or lapse of time, or both, would become a
Default, shall have happened and be continuing; and
(iii) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that such consolidation, merger,
conveyance or transfer and such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating to
such transaction have been complied with.
SECTION 10.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any conveyance or transfer of the
properties and assets of the Company substantially as an entirety in accordance
with Section 10.01, the successor corporation formed by such consolidation or
into which the Company is merged or to which such conveyance or transfer is made
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor
corporation had been named as the Company herein. In the event of any such
conveyance or transfer, the Company as the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture and may be
dissolved, wound up and liquidated at any time thereafter.
Page 58
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE
SECTION 11.01. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for and rights to receive payments thereon and any right to
receive additional amounts, as provided in Section 5.04), and the Trustee, on
receipt of a Company Request and at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when
(i) either
(a) all Securities theretofore authenticated and delivered (other than
(1) coupons appertaining to Bearer Securities surrendered for exchange for
Registered Securities and maturing after such exchange, whose surrender is
not required or has not been waived as provided in Section 3.05, (2)
coupons appertaining to Bearer Securities called for redemption and
maturing after the relevant Redemption Date, whose surrender has been
waived as provided in Section 4.07, (3) Securities and coupons which have
been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.06, and (4) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such
trust, as provided in Section 5.03) have been delivered to the Trustee for
cancellation; or
(b) all such Securities not theretofore delivered to the Trustee for
cancellation
(1) have become due and payable, or
(2) will become due and payable at their Maturity within one year,
or
(3) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (b) (1), (2) or (3) above, has deposited
or caused to be deposited with the Trustee, as trust funds in trust for
the purpose, an amount (said amount to be immediately due and payable to
the Holders) sufficient to pay and discharge the entire indebtedness on
such Securities and coupons not theretofore delivered to the Trustee for
cancellation, for principal, premium, if any, and interest to the date of
such deposit (in the case of Securities which have become due and
payable), or to the Maturity or Redemption Date, as the case may be;
(ii) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(iii) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 8.07 and, if money shall
have been deposited with the Trustee pursuant to subclause (b) of clause (i) of
this Section, the obligations of the Trustee under Section 11.02 and the last
paragraph of Section 5.03 shall survive. The Trustee may give notice at the
Company's expense to the Holders of Securities Outstanding of the immediate
availability of the amount referred to in Clause (i) of this Section 11.01.
Funds held pursuant to this Section shall not be subject to the provisions of
Article Fourteen.
SECTION 11.02. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 5.03, all money
deposited with the Trustee pursuant to Section 11.01 shall be held in trust and
applied by it, in accordance with the provisions of the Securities, the coupons,
if any, and this Indenture, to the payment, either directly or through any
Paying Agent
Page 59
(including the Company acting as its own Paying Agent), as the Trustee may
determine, to the Persons entitled thereto, of the principal, premium, if any,
and interest for whose payment such money has been deposited with the Trustee;
but such money need not be segregated from other funds except to the extent
required by law.
SECTION 11.03. Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money in accordance
with Section 11.02 by reason of any legal proceeding or by reason of any order
or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 11.01 until such time as the Trustee or
any Paying Agent is permitted to apply all such money in accordance with Section
11.02.
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Exemption from Individual Liability.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Security or coupon, or for any claim based thereon or
otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or through the Company,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are solely
corporate obligations of the Company, and that no such personal liability
whatever shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors, as such, of the Company or of any successor
corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or coupons or implied
therefrom; and that any and all such personal liability, either at common law or
in equity or by constitution or statute, of, and any and all such rights and
claims against, every such incorporator, stockholder, officer or director, as
such, because of the creation of the indebtedness hereby authorized, or under or
by reason of the obligations, covenants or agreements contained in this
Indenture or in any of the Securities or coupons or implied therefrom, are
hereby expressly waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issuance of the Securities.
ARTICLE THIRTEEN
SINKING FUNDS
SECTION 13.01. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 13.02. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of Securities of such
series.
Page 60
SECTION 13.02. Satisfaction of Sinking Fund Payments with Securities.
The Company (i) may deliver Outstanding Securities of a series (other than
any previously called for redemption), together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining thereto and
(ii) may apply as a credit Securities of a series which have been redeemed
either at the election of the Company pursuant to the terms of such Securities
or through the application of permitted optional sinking fund payments pursuant
to the terms of such Securities, in each case in satisfaction of all or any part
of any sinking fund payment with respect to the Securities of such series
required to be made pursuant to the terms of such Securities as provided for by
the terms of such series; provided that such Securities have not been previously
so credited. Such Securities shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
SECTION 13.03. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any series
of Securities, the Company will deliver to the Trustee and the Security
Registrar an Officers' Certificate specifying (i) the amount of the next ensuing
sinking fund payment for that series pursuant to the terms of that series, (ii)
the portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 13.02, and (iii) that none of such
Securities has theretofore been so credited and stating the basis for such
credit, and will also deliver to the Trustee any Securities to be so delivered.
Not less than 30 days before each sinking fund payment date the Security
Registrar shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 4.03 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 4.04. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 4.06 and 4.07.
ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
SECTION 14.01. Agreement to Subordinate.
The Company, for itself, its successors and assigns, covenants and agrees,
and each Holder of a Security by his acceptance thereof, likewise covenants and
agrees, that the payment of the principal and premium, if any, and interest on
each and all of the Securities is hereby expressly subordinated, to the extent
and in the manner hereinafter set forth, in right of payment to the prior
payment in full of all Senior Indebtedness and, subject to the provisions of
Section 14.09, General Obligations of the Company.
SECTION 14.02. Distribution on Dissolution, Liquidation and Reorganization;
Subrogation of Securities.
Upon any distribution of assets of the Company upon any dissolution, winding
up, liquidation or reorganization of the Company, whether in bankruptcy,
insolvency, reorganization or receivership proceedings or upon an assignment for
the benefit of creditors or any other marshalling of the assets and liabilities
of the Company or otherwise (subject to the power of a court of competent
jurisdiction to make other equitable provision reflecting the rights conferred
in this Indenture upon the Senior Indebtedness and the holders thereof with
respect to the Securities and the Holders thereof (and, upon the General
Obligations and the creditors in respect thereof with respect to the Securities
and the Holders thereof) by a lawful plan of reorganization under applicable
bankruptcy law),
(i) the holders of all Senior Indebtedness shall first be entitled to
receive payment in full in accordance with the terms of such Senior
Indebtedness of the principal thereof, premium, if any, and the interest due
thereon (including interest accruing subsequent to the commencement of any
proceeding for the bankruptcy or reorganization of the Company under any
applicable bankruptcy, insolvency, or similar law now or
Page 61
hereafter in effect) before the Holders of the Securities are entitled to
receive any payment upon the principal of or premium, if any, or interest on
indebtedness evidenced by the Securities;
(ii) any payment or distribution of assets of the Company of any kind or
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 Fourteen, including any such payment or distribution which may
be payable or deliverable by reason of the payment of any other indebtedness
of the Company being subordinated to the payment of the Securities, shall be
paid by the liquidating trustee or agent or other person making such payment
or distribution, whether a trustee in bankruptcy, a receiver or liquidating
trustee or otherwise, directly to the holders of Senior Indebtedness or their
representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Senior
Indebtedness may have been issued, in accordance with the priorities then
existing among holders of Senior Indebtedness for payment of the aggregate
amounts remaining unpaid on account of the principal of and premium, if any,
and interest (including interest accruing subsequent to the commencement of
any proceeding for the bankruptcy or reorganization of the Company under any
applicable bankruptcy, insolvency, or similar law now or hereafter in effect)
on the Senior Indebtedness held or represented by each, to the extent
necessary to make payment in full of all Senior Indebtedness remaining
unpaid, after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness; it being understood that if the Holders
of Securities shall fail to file a proper claim in the form required by any
proceeding referred to in this subparagraph (ii) prior to thirty days before
the expiration of the time to file such claim or claims, then the holders of
Senior Indebtedness are hereby authorized to file an appropriate claim or
claims for and on behalf of the Holders of Securities in the form required in
any such proceeding (as are the creditors in respect of General Obligations
in the event Section 14.09 is applicable); and
(iii) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, including any such payment or distribution
which may be payable or deliverable by reason of the payment of any other
indebtedness of the Company being subordinate to the payment of the
Securities, shall be received by the Trustee or Holders of the Securities
before all Senior Indebtedness is paid in full, such payment or distribution
shall be held in trust for the benefit of and shall be paid over to the
holders of such Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture under which
any instruments evidencing any of such Senior Indebtedness may have been
issued, ratably as aforesaid, for application to the payment of all Senior
Indebtedness remaining unpaid until all such Senior Indebtedness shall have
been paid in full, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders of
the Securities shall be subrogated (equally and ratably with the holders of
all indebtedness of the Company which by its express terms is subordinated to
indebtedness of the Company to substantially the same extent as the
Securities are subordinated and is entitled to like rights of subrogation) to
the rights of the holders of Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company applicable to
the Senior Indebtedness until the principal of and premium, if any, and
interest on the Securities shall be paid in full and no such payments or
distributions to holders of such Senior Indebtedness to which the Holders of
the Securities would be entitled except for the provisions hereof of cash,
property or securities otherwise distributable to the Senior Indebtedness
shall, as between the Company, its creditors, other than the holders of
Senior Indebtedness, and the Holders of the Securities, be deemed to be a
payment by the Company to or on account of the Securities. It is understood
that the provisions of this Article Fourteen 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 Senior Indebtedness (and, in the case of
Section 14.09, the Holders of the Securities, on the one hand, and creditors
in respect of General Obligations) on the other hand. Nothing contained in
this Article Fourteen or elsewhere in this Indenture or in the Securities is
intended to or shall impair, as between the Company, its creditors, other
than the holders of Senior Indebtedness, and the Holders of the Securities,
the obligation of the Company, which is unconditional and absolute (and
which, subject to the rights under this Article Fourteen of the holders of
the Senior
Page 62
Indebtedness and the rights under Section 14.09 of creditors in respect of
General Obligations, is intended to rank equally with all other general
obligations of the Company), to pay to the Holders of the Securities the
principal of, premium, if any, and interest on the Securities as and when the
same shall become due and payable in accordance with their terms or to affect
the relative rights of the Holders of the Securities and creditors of the
Company, other than the holders of the Senior Indebtedness and creditors in
respect of General Obligations, nor shall anything herein or in the Securities
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 Fourteen of the holders of Senior
Indebtedness and under Section 14.09 of creditors in respect of General
Obligations in respect of cash, property or securities of the Company received
upon the exercise of any such remedy. Upon any payment or distribution of assets
of the Company referred to in this Article Fourteen, the Trustee, subject to the
provisions of Section 8.01, and the Holders of the Securities shall be entitled
to rely upon any order or decree of a court of competent jurisdiction in which
such dissolution, winding up, liquidation or reorganization proceedings are
pending or upon a certificate of the liquidating trustee or agent or other
person making any distribution 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 Company and the creditors in respect of General Obligations,
the amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article Fourteen. In
the absence of any such liquidating trustee, agent or other person, the Trustee
shall be entitled to rely upon a written notice by a Person representing himself
to be a holder of Senior Indebtedness (or a trustee or representative on behalf
of such holder) or a creditor in respect of General Obligations as evidence that
such Person is a holder of Senior Indebtedness (or is such a trustee or
representative) or a creditor in respect of General Obligations, as the case may
be. 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 or a creditor in respect of General Obligations, to
participate in any payment or distribution pursuant to this Section or Section
14.09, the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness or General
Obligations held by such Person, as to the extent to which such Person is
entitled to participation in such payment or distribution, and as to other facts
pertinent to the rights of such Person under this Section or Section 14.09, 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.
The obligations of the Company in respect of the Securities shall rank on a
parity with the Existing Subordinated Indebtedness and any other obligations of
the Company ranking on a parity with the Securities.
With respect to the holders of Senior Indebtedness or creditors in respect of
General Obligations, the Trustee undertakes to perform or to observe only such
of its covenants and obligations as are specifically set forth in this Article,
and no implied covenants or obligations with respect to the holders of Senior
Indebtedness or creditors in respect of General Obligations shall be read into
this Indenture against the Trustee. The Trustee, however, shall not be deemed to
owe any fiduciary duty to the holders of Senior Indebtedness or creditors in
respect of General Obligations, and shall not be liable to any such holders or
creditors if it shall mistakenly pay over or distribute to or on behalf of
Holders of Securities or the Company moneys or assets to which any holders of
Senior Indebtedness or creditors in respect of General Obligations shall be
entitled by virtue of this Article Fourteen.
SECTION 14.03. Payments on Securities Prohibited During Event of Default under
Senior Indebtedness.
In the event and during the continuation of any default in the payment of
principal of, or premium, if any, or interest on, any Senior Indebtedness beyond
any applicable period of grace, or in the event that any event of default with
respect to any Senior Indebtedness shall have occurred and be continuing, or
would occur as a result of the payment referred to hereinafter, permitting the
holders of such Senior Indebtedness (or a trustee on behalf of the holders
thereof) to accelerate the maturity thereof, then, unless and until such default
or event of default shall have been cured or waived or shall have ceased to
exist, no payment of principal of, or premium or interest on the Securities, or
in respect of any redemption, retirement, purchase or other acquisition of any
of the Securities, shall be made by the Company.
Page 63
SECTION 14.04. Payments on Securities Permitted.
Nothing contained in this Indenture or in any of the Securities shall (i)
impair, as between the Company and Holders of Securities, the obligation of the
Company to make, or prevent the Company from making, at any time except as
provided in Sections 14.02, 14.03 and 14.09, payments of principal of or
premium, if any, or interest (including interest accruing subsequent to the
commencement of any proceeding for the bankruptcy or reorganization of the
Company under any applicable bankruptcy, insolvency or similar law now or
hereafter in effect) on the Securities, as and when the same shall become due
and payable in accordance with the terms of the Securities, (ii) affect the
relative rights of the Holders of the Securities and creditors of the Company
other than the holders of the Senior Indebtedness of the Company and the
creditors in respect of General Obligations, (iii) prevent the Holder of any
Security from exercising all remedies otherwise permitted by applicable law upon
default thereunder, subject to the rights, if any, under Article Fourteen of the
holders of Senior Indebtedness and the creditors in respect of General
Obligations in respect of cash, property or securities of the Company received
upon the exercise of such remedy, or (iv) prevent the application by the Trustee
or any Paying Agent of any moneys deposited with it hereunder to the payment of
or on account of the principal of or premium, if any, or interest on the
Securities or prevent the receipt by the Trustee or any Paying Agent of such
moneys, if, prior to the second Business Day prior to such deposit, the Trustee
or such Paying Agent did not have written notice of any event prohibiting the
making of such deposit by the Company.
SECTION 14.05. Authorization of Holders to Trustee to Effect Subordination.
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 as provided in this Article Fourteen and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 14.06. Notice to Trustee.
Notwithstanding the provisions of this Article or any other provisions of the
Indenture, neither the Trustee nor any Paying Agent shall be charged with
knowledge of the existence of any Senior Indebtedness or General Obligations or
of any event which would prohibit the making of any payment of moneys to or by
the Trustee or such Paying Agent, unless and until a Responsible Officer of the
Trustee assigned to its Corporate Trustee Administration Department or such
Paying Agent shall have received written notice thereof from the Company or from
the holder of any Senior Indebtedness or from the representative of any such
holder or from any creditor in respect of General Obligations.
SECTION 14.07. Right of Trustee to Hold Senior Indebtedness or General
Obligations.
The Trustee shall be entitled to all of the rights set forth in this Article
in respect of any Senior Indebtedness or General Obligation at any time held by
it in its individual capacity to the same extent as any other holder of such
Senior Indebtedness or creditor in respect of such General Obligation and
nothing in this Indenture shall be construed to deprive the Trustee of any of
its rights as such holder or creditor.
SECTION 14.08. Article Fourteen Not to Prevent Defaults or Events of Default.
The failure to make a payment pursuant to the Securities by reason of any
provision in this Article shall not be construed as preventing the occurrence of
a Default or an Event of Default.
SECTION 14.09. Securities to Rank Pari Passu with Existing Subordinated
Indebtedness; Payment of Proceeds in Certain Cases.
(i) Subject to the provisions of this Section and to any provisions
established or determined with respect to Securities of any series pursuant
to Section 3.01, the Securities shall rank pari passu in right of payment
with the Existing Subordinated Indebtedness.
Page 64
(ii) Upon the occurrence of any of the events specified in the first
paragraph of Section 14.02, the provisions of that Section and the
corresponding provisions of each indenture (including this Indenture) or
other instrument or document establishing or governing the terms of any
Existing Subordinated Indebtedness shall be given effect on a pro rata basis
to determine the amount of cash, property or securities which may be payable
or deliverable as between the holders of Senior Indebtedness, on the one
hand, and the Holders of the Securities and holders of Existing Subordinated
Indebtedness, on the other hand.
(iii) If, after giving effect to the provisions of Section 14.02, and the
respective corresponding provisions of each indenture or other instrument or
document establishing or governing the terms of any Existing Subordinated
Indebtedness on such pro rata basis, any amount of cash, property or
securities shall be available for payment or distribution in respect of the
Securities ("Excess Proceeds"), and any creditors in respect of General
Obligations shall not have received payment in full of all amounts due or to
become due on or in respect of such General Obligations (and provision shall
not have been made for such payment in money or money's worth), then such
Excess Proceeds shall first be applied (ratably with any amount of cash,
property or securities available for payment or distribution in respect of
any other indebtedness of the Company that by its express terms provides for
the payment over of amounts corresponding to Excess Proceeds to creditors in
respect or General Obligations) to pay or provide for the payment of the
General Obligations remaining unpaid, to the extent necessary to pay all
General Obligations in full, after giving effect to any concurrent payment or
distribution to or for creditors in respect of General Obligations. Any
Excess Proceeds remaining after payment (or provision for payment) in full of
all General Obligations shall be available for payment or distribution in
respect of the Securities.
(iv) In the event that, notwithstanding the foregoing provisions of
subsection (iii) of this Section, the Trustee or Holder of any Security
shall, in the circumstances contemplated by such subsection, have received
any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, before all General
Obligations are paid in full or payment thereof duly provided for, and if
such fact shall, at or prior to the time of such payment or distribution have
been made known to the Trustee or, as the case may be, such Holder, then and
in such event, subject to any obligation that the Trustee or such Holder may
have pursuant to Section 14.02, such payment or distribution shall be paid
over or delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or other Person making
payment or distribution of assets of the Company for payment in accordance
with subsection (iii).
(v) Subject to the payment in full of all General Obligations, the Holder
of the Securities shall be subrogated (equally and ratably with the holders
of all indebtedness of the Company that by its express terms provides for the
payment over of amounts corresponding to Excess Proceeds to creditors in
respect of General Obligations and is entitled to like rights of subrogation)
to the rights of the creditors in respect of General Obligations to receive
payments and distributions of cash, property and securities applicable to the
General Obligations until the principal of and interest on the Securities
shall be paid in full. For purposes of such subrogation, no payments or
distributions to creditors in respect of General Obligations of any cash,
property or securities to which Holders of the Securities or the Trustee
would be entitled except for the provisions of this Section, and no payments
over pursuant to the provisions of this Section to creditors in respect of
General Obligations by Holders of Securities or the Trustee, shall, as among
the Company, its creditors (other than creditors in respect of General
Obligations) and the Holders of Securities be deemed to be a payment or
distribution by the Company to or on account of the General Obligations.
(vi) The provisions of subsections (iii), (iv) and (v) of this Section 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 creditors in respect
of General Obligations, on the other hand, after giving effect to the rights
of the holders of Senior Indebtedness, as provided in this Article. Nothing
contained in subsections (iii), (iv) and (v) of this Section is intended to
or shall affect the relative rights against the Company of the Holders of the
Securities and (a) the holders of Senior Indebtedness, (b) the holders of
Existing Subordinated Indebtedness or (c) other creditors of the Company
other than creditors in respect of General Obligations.
Page 65
ARTICLE FIFTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 15.01. Applicability of Article.
Securities of any series which are repayable at the option of the Holders
thereof before their Stated Maturity shall be repaid in accordance with their
terms and (except as otherwise specified pursuant to Section 3.01 for Securities
of such series) in accordance with this Article.
Section 15.02. Repayment of Securities.
Each Security which is subject to repayment in whole or in part at the option
of the Holder thereof on a Repayment Date shall be repaid at the applicable
Repayment Price together with interest accrued to such Repayment Date as
specified pursuant to Section 3.01.
Section 15.03. Exercise of Option; Notice.
Each Holder desiring to exercise such Holder's option for repayment shall, as
conditions to such repayment, surrender the Security to be repaid in whole or in
part together with written notice of the exercise of such option at any office
or agency of the Company in a Place of Payment, not less than 30 nor more than
45 days prior to the Repayment Date; provided, however, that surrender of Bearer
Securities together with written notice of exercise of such option shall be made
at an office or agency located outside the United States except as otherwise
provided in Section 5.02. Such notice, which shall be irrevocable, shall specify
the principal amount of such Security to be repaid, which shall be equal to the
minimum authorized denomination for such Security or an integral multiple
thereof, and shall identify the Security to be repaid and, in the case of a
partial repayment of the Security, shall specify the denomination or
denominations of the Security or Securities of the same series to be issued to
the Holder for the portion of the principal of the Security surrendered which is
not to be repaid.
If any Bearer Security surrendered for repayment shall not be accompanied by
all unmatured coupons and all matured coupons in default, such Bearer Security
may be paid after deducting from the Repayment Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Bearer Security shall
surrender to the Trustee or any Paying Agent any such missing coupon in respect
of which a deduction shall have been made from the Repayment Price, such Holder
shall be entitled to receive the amount so deducted without interest thereon;
provided, however, that interest represented by coupons shall be payable only at
an office or agency located outside the United States except as otherwise
provided in Section 5.02.
The Company shall execute and the Trustee shall authenticate and deliver
without service charge to the Holder of any Registered Security so surrendered a
new Registered Security or Securities of the same series and tenor of any
authorized denomination specified in the foregoing notice, in an aggregate
principal amount equal to any portion of the principal of the Registered
Security so surrendered which is not to be repaid.
The Company shall execute and the Trustee shall authenticate and deliver
without service charge to the Holder of any Bearer Security so surrendered a new
Registered Security or Securities or new Bearer Security or Securities (and all
appurtenant unmatured coupons and matured coupons in default) or any combination
thereof of the same series and tenor of any authorized denomination or
denominations specified in the foregoing notice, in an aggregate principal
amount equal to any portion of the principal of the Security so surrendered
which is not to be paid; provided, however, that the issuance of a Registered
Security therefor shall be subject to applicable laws and regulations, including
provisions of the United States federal income tax laws and regulations in
effect at the time of the exchange; neither the Company, the Trustee nor the
Security Registrar shall issue Registered Securities for Bearer Securities if it
has received an Opinion of Counsel that as a result of such issuance the Company
would suffer adverse consequences under the United States federal income tax
laws
Page 66
then in effect and the Company has delivered to the Trustee a Company Order
directing the Trustee not to make such issuances thereafter unless and until the
Trustee receives a subsequent Company Order to the contrary. The Company shall
deliver copies of such Company Order to the Security Registrar.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the repayment of Securities shall relate, in the case
of any Security repaid or to be repaid only in part, to the portion of the
principal of such Security which has been or is to be repaid.
Section 15.04. Election of Repayment by Remarketing Entities.
The Company may elect, with respect to Securities of any series which are
repayable at the option of the Holders thereof before their Stated Maturity, at
any time prior to any Repayment Date to designate one or more Remarketing
Entities to purchase, at a price equal to the Repayment Price, Securities of
such series from the Holders thereof who give notice and surrender their Debt
Securities in accordance with Section 15.03.
Section 15.05. Securities Payable on the Repayment Date.
Notice of exercise of the option of repayment having been given and the
Securities so to be repaid having been surrendered as aforesaid, such Securities
shall, unless purchased in accordance with Section 15.04, on the Repayment Date
become due and payable at the price therein specified and from and after the
Repayment Date such Securities shall cease to bear interest and shall be paid on
the Repayment Date, and the coupons for such interest appertaining to Bearer
Securities so to be repaid, except to the extent provided above, shall be void,
unless the Company shall default in the payment of such price, in which case the
Company shall continue to be obligated for the principal amount of such
Securities and shall be obligated to pay interest on such principal amount at
the rate prescribed therefor by such Securities from time to time until payment
in full of such principal amount.
ARTICLE SIXTEEN
Meetings of Holders of Securities
Section 16.01. Purposes for Which Meetings May Be Called.
If Securities of a series are issuable in whole or in part as Bearer
Securities, a meeting of Holders of Securities of such series may be called at
any time and from time to time pursuant to this Article to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or other
Act provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
Section 16.02. Call, Notice and Place of Meetings.
(i) The Trustee may at any time call a meeting of Holders of Securities of
any series issuable as Bearer Securities for any purpose specified in Section
16.01, to be held at such time and at such place in the City of Chicago,
Illinois, the Borough of Manhattan, The City of New York, or in London as the
Trustee shall determine. Notice of every meeting of Holders of Securities of any
series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 1.06, not less than 21 nor more than 180 days prior
to the date fixed for the meeting.
(ii) In case at any time the Company, pursuant to a Board Resolution, or the
Holders of at least 10% in principal amount of the Outstanding Securities of any
series shall have requested the Trustee to call a meeting of the Holders of
Securities of such series for any purpose specified in Section 16.01, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company or the Holders of Securities of
Page 67
such series in the amount above specified, as the case may be, may determine the
time and the place in the City of Chicago, Illinois, the Borough of Manhattan,
The City of New York, or in London for such meeting and may call such meeting
for such purposes by giving notice thereof as provided in subsection (i) of this
Section.
Section 16.03. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any series,
a Person shall be (1) a Holder of one or more Outstanding Securities of such
series, or (2) a Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
Section 16.04. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of a greater percentage
in principal amount of the Outstanding Securities of a series, the Persons
entitled to vote such greater percentage in principal amount of the Outstanding
Securities of such series shall constitute a quorum. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of Securities of such series, be
dissolved. In the absence of a quorum in any other case the meeting may be
adjourned for a period of not less than 10 days as determined by the chairman of
the meeting prior to the adjournment of such meeting. In the absence of a quorum
at any such adjourned meeting, such adjourned meeting may be further adjourned
for a period of not less than 10 days as determined by the chairperson of the
meeting prior to the adjournment of such adjourned meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section
16.02(i), except that such notice need be given only once not less than five
days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum.
Except as limited by the provisos to Section 9.02, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities of the series;
provided, however, that, except as limited by the provisos to Section 9.02, any
resolution with respect to any consent or waiver which this Indenture expressly
provides may be given by the Holders of a greater percentage in principal amount
of the Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as aforesaid
only by the affirmative vote of the Holders of such greater percentage in
principal amount of the Outstanding Securities of that series; and provided,
further, that, except as limited by the provisos to Section 9.02, any resolution
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other Act which this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of a series may be
adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of that
series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
Page 68
Section 16.05. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of such series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 1.04 and the
appointment of any proxy shall be proved in the manner specified in Section 1.04
or, in the case of Bearer Securities, by having the signature of the person
executing the proxy witnessed or guaranteed by any trust company, bank or banker
authorized by Section 1.04 to certify to the holding of Bearer Securities. Such
regulations may provide that written instruments appointing proxies, regular on
their face, may be presumed valid and genuine without the proof specified in
Section 1.04 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairperson of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 16.02(ii), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairperson. A
permanent chairperson and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall be
entitled to one vote for each $1,000 principal amount (or the equivalent in ECU,
any other composite currency or a Foreign Currency) of Securities of such series
held or represented by him; provided, however, that no vote shall be cast or
counted at any meeting in respect of any Security challenged as not Outstanding
and ruled by the chairperson of the meeting not to be Outstanding. The
chairperson of the meeting shall have no right to vote, except as a Holder of a
Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called pursuant
to Section 16.02 at which a quorum is present may be adjourned from time to time
by Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting; and the meeting may be
held as so adjourned without further notice.
Section 16.06. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairperson of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 16.02 and, if
applicable, Section 16.04. Each copy shall be signed and verified by the
affidavits of the permanent chairperson and secretary of the meeting and one
such copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
Page 69
ARTICLE SEVENTEEN
MISCELLANEOUS
SECTION 17.01. 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.
The Chase Manhattan Bank (National Association) hereby accepts the trusts in
this Indenture declared and provided, upon the terms and conditions hereinabove
set forth.
* * * *
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
First Chicago NBD Corporation
BY________________________________
Senior Vice President and
Treasurer
Attest:
[CORPORATE SEAL]
Assistant Secretary
The Chase Manhattan Bank (National
Association), as Trustee
BY________________________________
Attest:
Assistant Secretary
Page 70
)
State of Illinois, ) ss.:
County of Cook )
)
|
On this day of , 1995, before me personally came , to me known, who, being by
me duly sworn, did depose and say that he resides at Chicago, Illinois; that he
is Senior Vice President and Treasurer of FIRST CHICAGO NBD CORPORATION, one of
the corporations described in and which executed the foregoing 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]
------------------------------
Notary Public
)
State of , ) ss.:
County of )
)
On this day of , 1995, before me personally appeared , to me
|
known, who, being by me duly sworn, did depose and say that he resides at
; that he is a of The Chase Manhattan Bank (National Association),
one of the parties described in and which executed the foregoing instrument; and
that he signed his name by authority of the Board of Directors of said
association.
[Notarial Seal]
Notary Public
Page 71
EXHIBIT A
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that the above-captioned Securities are not being acquired
by or on behalf of a United States person, or, if a beneficial interest in the
Securities is being acquired by or on behalf of a United States person, that
such United States person is a financial institution within the meaning of
Section 1.165-12(c)(1)(v) of the United States Treasury regulations which agrees
to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended and the regulations thereunder. If the
undersigned is a dealer, the undersigned agrees to obtain a similar certificate
from each person entitled to delivery of any of the above-captioned Securities
in bearer form purchased from it; provided, however, that, if the undersigned
has actual knowledge that the information contained in such a certificate is
false, the undersigned will not deliver a Security in temporary or definitive
bearer form to the person who signed such certificate notwithstanding the
delivery of such certificate to the undersigned.
As used herein, "United States person" means any citizen or resident of the
United States, any corporation, partnership or other entity created or organized
in or under the laws of the United States and any estate or trust the income of
which is subject to United States Federal income taxation regardless of its
source, and "United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
We undertake to advise you by telex if the above statement as to beneficial
ownership is not correct on the date of delivery of the above-captioned
Securities in bearer form as to all of such Securities.
We understand that this certificate is required in connection with certain
tax legislation in the United States. If administrative or legal proceedings are
commenced or threatened in connection with which this certificate is or would be
relevant, we irrevocably authorize you to produce this certificate or a copy
thereof to any interested party in such proceedings.
Dated:_____, 19___
[To be dated no earlier than 15 days prior
to the Exchange Date]
[Name of Person Entitled to
Receive Bearer Security]
(Authorized Signatory)
Name:
Title:
Page 72
EXHIBIT B
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND CEDEL S.A. IN CONNECTION WITH
THE
EXCHANGE OF A PORTION OF A TEMPORARY GLOBAL SECURITY
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify with respect to $_________ principal amount of the above-
captioned Securities (i) that we have received from each of the persons
appearing in our records as persons entitled to a portion of such principal
amount (our "Qualified Account Holders") a certificate with respect to such
portion substantially in the form attached hereto, and (ii) that we are not
submitting herewith for exchange any portion of the temporary global Security
representing the above-captioned Securities excepted in such certificates.
We further certify that as of the date hereof we have not received any
notification from any of our Qualified Account Holders to the effect that the
statements made by such Qualified Account Holders with respect to any portion of
the part submitted herewith for exchange are no longer true and cannot be relied
upon as of the date hereof.
Dated: ________, 19___
[To be dated no earlier than
the Exchange Date]
[MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, Brussels Office, as
Operator of the Euro-clear System]
[CEDEL S.A.]
By ___________________________________
Page 73
EXHIBIT C
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND CEDEL S.A. TO
OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities]
This is to certify that, as of the Interest Payment Date on [Insert Date],
the undersigned, which is a holder of an interest in the temporary global
Security representing the above Securities, is not a United States person.
As used herein, "United States person" means any citizen or resident of the
United States, any corporation, partnership or other entity created or organized
in or under the laws of the United States and any estate or trust the income of
which is subject to United States Federal income taxation regardless of its
source, and "United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
We confirm that the interest payable on such Interest Payment Date will be
paid to each of the persons appearing in our records as being entitled to
interest to be paid on the above date from whom we have received a written
certification dated not earlier than 15 days prior to such Interest Payment Date
to the effect that the beneficial owner of such portion with respect to which
interest is to be paid on such date either is not a United States person or is a
United States person which is a financial institution which has provided an
Internal Revenue Service Form W-9 or is an exempt recipient as defined in United
States Treasury Regulations (S) 1.6049-4(c)(1)(ii). We undertake to retain
certificates received from our member organizations in connection herewith for
four years from the end of the calendar year in which such certificates are
received.
The foregoing reflects any advice received subsequent to the date of any
certificate stating that the statements contained in such certificate are no
longer correct.
Dated:______, 19____
[To be dated on or after the
relevant Interest Payment
Date]
[MORGAN GUARANTY TRUST COMPANY OF NEW
YORK, Brussels Office, as Operator of
the Euro-clear System]
[CEDEL S.A.]
By____________________________________
Page 74
EXHIBIT D
FORM OF CERTIFICATE TO BE GIVEN BY BENEFICIAL OWNERS TO
OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities]
This is to certify that as of the date hereof, no portion of the temporary
global Security representing the above-captioned Securities and held by you for
our account is beneficially owned by a United States person or, if any portion
thereof held by you for our account is beneficially owned by a United States
person, such United States person is a financial institution within the meaning
of Section 1.165-12(c)(1)(v) of the United States Treasury regulations which
agrees to comply with Section 165(j)(3)(A), (B) or (C) of the Internal Revenue
Code of 1986, as amended and the regulations thereunder, and certifies that
either it has provided an Internal Revenue Service Form W-9 or is an exempt
recipient as defined in Section 1.6049-4(c)(1)(ii) of the United States Treasury
regulations.
As used herein, "United States person" means any citizen or resident of the
United States, any corporation, partnership or other entity created or organized
in or under the laws of the United States and any estate or trust the income of
which is subject to United States Federal income taxation regardless of its
source, and "United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
We undertake to advise you by telex if the above statement as to beneficial
ownership is not correct on the Interest Payment Date on [Insert Date] as to any
such portion of such temporary global Security.
We understand that this certificate is required in connection with certain
tax legislation in the United States. If administrative or legal proceedings are
commenced or threatened in connection with which this certificate is or would be
relevant, we irrevocably authorize you to produce this certificate or a copy
thereof to any interested party in such proceedings.
Dated:________, 19____
[To be dated on or after the
15th day before the relevant
Interest Payment Date]
[Name of Account Holder]
(Authorized Signatory)
Name:
Title:
Page 75
EXHIBIT-10.1
THE CHASE MANHATTAN CORPORATION
DEFERRED COMPENSATION PLAN FOR NON-EMPLOYEE DIRECTORS
(As amended and restated December 1996)
1. Definitions - The following are defined terms wherever they appear in the
Plan.
1.1 "Administrator" shall mean the Secretary, or such other person or committee
appointed by the Chief Executive Officer of the Corporation, responsible for
those functions assigned to the Administrator under the Plan.
1.2 "Bank" shall mean The Chase Manhattan Bank.
1.3 "Board of Directors" shall mean the Board of Directors of the Corporation
or the Bank.
1.4 "Corporation" shall mean The Chase Manhattan Corporation.
1.5 "Deferred Compensation Account" or "Account" shall mean the separate account
established under the Plan for each Participant as described in Section 3.1.
1.6 "Director" shall mean a member of the Board of Directors of the Corporation
or the Board of Directors of the Bank who is not also an employee (or former
employee) of the Corporation or the Bank.
1.7 "Participant" shall mean each Director who participates in the Plan in
accordance with the terms and conditions of the Plan.
1.8 "Plan" shall mean the Deferred Compensation Plan for Non-Employee Directors
of The Chase Manhattan Corporation and The Chase Manhattan Bank, as amended from
time to time.
1.9 "Stock" shall mean the Common Stock of the Corporation, $1.00 par value per
share.
1.10 "Valuation Date" shall mean the close of business on the last business day
of each calendar quarter.
1.11 "Subsidiary" shall mean any corporation which at the time qualifies as a
subsidiary of the Corporation under the definition of "subsidiary corporation"
in Section 425(f) of the Internal Revenue Code, as amended from time to time.
2 2. Participation.
2.1 Eligibility. Each Director is eligible to participate in the Plan.
2.2 Participation in the Plan; Termination of Participation. (a) An individual
may elect to participate by delivering a properly executed election form to the
Administrator. The election form shall specify: (1) the amount, by percentage or
by dollar amount, of cash compensation and/or the amount (but not less than all)
of Stock compensation to be deferred; (2) the allocation of deferred cash
compensation among the forms of hypothetical investment of such deferred
compensation; (3) the manner in which deferred compensation is to be paid; (4)
the date or dates for payment of deferred compensation; and (5) the manner of
payment of deferred compensation to a Participant's estate in the event of death
before complete distribution of deferred compensation. (b) The effective date
for participation in the Plan by an individual who is a Director shall be the
first day of the calendar year next beginning after the date that the
Administrator receives the individual's election to participate in the Plan. The
effective date of participation in the Plan for an individual who is not a
Director shall be the date that he becomes a Director if the Administrator has
received an election to participate in the Plan prior to that date. (c) A
Participant may elect to terminate participation in the Plan by delivering
written notice to the Administrator. The effective date for termination shall be
the date specified by the Participant in the notice of termination (but not
earlier than the date of such notice). (d) The deferral of a Participant's
compensation shall begin or end, as appropriate, as of the effective date of the
Participant's election to participate or of the Participant's notice to
terminate participation, as appropriate, described in paragraphs (b) and (c)
above.
2.3 Term of Election of Deferral; Modification or Termination of Election of
Deferral. (a) An election to defer compensation, or to modify a prior election
to defer compensation, must be made by the Participant prior to the commencement
of the period during which the compensation is earned or to which the
compensation relates and shall continue in effect until modified or terminated
by the Participant or until the Participant ceases to be eligible to participate
in the Plan. A Participant may at any time modify 2 3 or terminate an election
to defer compensation, but in each case only once in any 12-month period. (b) A
termination of an election to defer compensation shall apply prospectively only
and shall not affect previously deferred compensation. A Participant who
terminates an election to defer compensation is not eligible to participate in
the Plan again until 12 months after the date that the Participant's election to
terminate becomes effective under Section 2.2.
3. Compensation Deferred.
3.1 Deferred Compensation Account. (a) A Deferred Compensation Account shall be
established for each Participant. The Account shall consist of two parts: (1)
cash compensation deferred by a Participant under the Plan, along with
hypothetical income (or losses) on this compensation (the "Cash Account") and
(2) compensation in the form of Stock plus Stock credited to Participant as a
result of the hypothetical reinvestment of hypothetical dividends on such Stock
compensation (the "Stock Account"). The amount of cash deferred (plus income or
less losses) shall be credited to the Participant's Cash Account. The number of
shares of Stock deferred, plus Stock resulting from the hypothetical
reinvestment of hypothetical dividends on deferred Stock compensation, shall be
credited to the Participant's Stock Account. (b) Deferred cash compensation
shall
be credited to the Participant's Cash Account as of the last day of the month
during which such cash compensation was otherwise payable to the Participant.
For purposes of hypothetical investment of cash compensation under Section 3.3,
however, deferred cash compensation shall not be considered to be hypothetically
invested until the first day of the calendar quarter next following the date
that such compensation is credited to the Participant's Cash Account and shall
not begin to earn income until the first day of such quarter. (c) Deferred Stock
compensation shall be credited annually to the Participant's Stock Account as of
December 1 or such other date as may be specified by the Board of Directors for
the payment of Stock compensation.
3.2 Amount of Deferral. A Participant may elect to defer receipt of all or a
specified portion, by percentage or by dollar amount, of compensation otherwise
payable in cash and/or all (but not a portion of) compensation payable in Stock
to the Participant for services as a Director or as a member of a committee of
the Board of Directors of the Corporation or the Bank or as a member of any
advisory board of the Corporation, the Bank or any subsidiary of the Corporation
or the Bank. For these purposes, compensation shall include, but shall not be
limited to, Directors' fees (whether in cash or Stock), retainers, meeting fees,
fees for committees or other similar forms of remuneration, but shall not
include direct reimbursement of expenses.
3.3 Hypothetical Investment of Cash. Deferred cash compensation is assumed to be
invested, without charge, in one or more of the investment equivalents made
available from time to time hereunder. Descriptions of investment equivalents
available under the Plan shall be provided to each Participant on or prior to
the Participant making an allocation or reallocation of investment equivalents
into which any deferred cash payments are to be allocated or reallocated.
3.4 Time of Hypothetical Investment of Cash. The amount of cash in the
Participant's Cash Account on each Valuation Date which has not been previously
invested shall be deemed invested in a hypothetical investment on that Valuation
Date based on the value of the hypothetical investment on that date.
3.5 Allocation of Hypothetical Investments of Cash; Reallocation of Hypothetical
Investments of Cash. (a) A Participant may allocate the balance of the
Participant's Cash Account to one or more hypothetical investments. The
allocation shall be selected by the Participant. (b) A Participant may at any
time prospectively change the allocation of the hypothetical investment of
future deferred cash compensation. The reallocation of such future deferred
compensation may be made only once in a 12-month period and shall be effective
as of, and shall be based upon values in effect on, the Valuation Date which is
coincident with or next following the date that the Administrator receives the
Participant's written notification of the reallocation. (c) A Participant may at
any time also reallocate among the hypothetical investments any cash
compensation previously deferred by the Participant and then credited to the
Participant's Cash Account. This reallocation is in addition to the reallocation
described in paragraph (b) above and may be made only once in a 12-month period.
The reallocation shall be effective as of, and based upon values in effect on,
the Valuation Date which is coincident with or next following
the date that the Administrator receives the Participant's written notification
of the reallocation.
3.6 Hypothetical Dividends on Deferred Stock. Dividends shall be deemed to have
been paid on Stock allocated to a Participant's Stock Account as if such
allocated Stock were actual shares of Stock issued and outstanding on the record
date for dividends on Stock. Such hypothetical dividends shall be converted into
deferred shares of Stock and shall be credited to a Participant's Stock Account
quarterly on each payment date in the amount of such hypothetical dividends
divided by the average of the high and low selling price of one share of Stock
as reported in the New York Stock Exchange Composite Transactions on such
payment date. Fractional shares shall be credited to a Participant's Stock
Account cumulatively, but the balance of shares of Stock in a Participant's
Stock Account shall be rounded to the next highest whole share in the event of
any issuance and distribution of Stock to such Participant pursuant to Section
4.1. The number of shares of Stock in a Participant's Stock Account shall be
adjusted to reflect stock dividends, splits and reclassifications.
3.7 Balance of Deferred Compensation Account. The balance of each Participant's
Deferred Compensation Account shall include: (1) cash compensation deferred by
the Participant and income (or losses) from the hypothetical investment of this
compensation credited to the Participant's Cash Account and (2) Stock
compensation deferred by the Participant and credited to the Participant's Stock
Account and any additional Stock credited to the Participant's Stock Account
from the investment of dividends deemed paid on such Stock compensation. The
balance of each Participant's Deferred Compensation Account, and the income or
losses attributable to the Account since the last Valuation Date, shall be
determined as of each Valuation Date.
3.8 Statement of Account. A statement shall be sent to each Participant as to
the balance of the Participant's Deferred Compensation Account at least once a
calendar year.
4. Payment of Deferred Compensation.
4.1 Payment of Deferred Compensation. Upon termination of services as a
Director, the balance of the Participant's Deferred Compensation Account shall
(subject to Section 4.2) be paid to the Participant in the manner and at the
time selected by the Participant prior to the date of such termination. For
purposes of payment, the balance of the Participant's Account shall be valued as
of the Valuation Date coincident with or immediately preceding the date that the
balance, or the particular installment thereof, is to be paid, but the balance
of the Participant's Account shall include all compensation deferred by the
Participant since the last Valuation Date.
4.2 Elections Pertaining to Payments. The Participant may elect the manner of
payment of the balance of the Participant's Deferred Compensation Account,
whether in the Cash or Stock Account, including the dates of periodic payments
over a specified period of years or the date of a lump sum distribution,
provided that: (a) If the payment provides for installments, the payments shall
be made at least annually and not more frequently
than quarterly and shall be payable for a period not to exceed 15 years; (b)
Except as provided in paragraph (d) below, no payments may be made prior to the
first day of the calendar year following the calendar year during which the
Participant terminates services as a Director unless the payment is made
pursuant to Section 4.4 or Section 4.5; (c) No payments from any Participant's
Stock Account shall be payable otherwise than in shares of Stock; and (d) No
payments from any Participant's Cash Account shall be payable otherwise than in
cash.
4.3 Modifications of Elections Pertaining to Payments. A Participant may at any
time prior to the date that the Participant's service as a Director is
terminated modify previous elections pertaining to: (1) the date or dates and
the manner in which the balance of the Participant's Deferred Compensation
Account is to be paid and (2) the manner of payment of the balance of the
Participant's Deferred Compensation Account in the event of the Participant's
death.
4.4 Payments to a Deceased Participant's Estate or Beneficiaries. (a) A
Participant may elect by notice to the Administrator that in the event of the
Participant's death, any balance in the Participant's Deferred Compensation
Account shall be paid (i) to beneficiaries, named by the Participant, provided
that if no such election is made, payment shall be to the Participant's estate;
and (ii) in the same manner as provided with respect to the Participant,
provided that if no such election is made the balance of the Participant's
Deferred Compensation Account shall be determined as of the Valuation Date
coincident with or immediately following the Participant's death and this amount
shall be paid in a single payment to the Participant's estate as soon as
reasonably practicable thereafter. (b) In the event of a Participant's election
to have Deferred Compensation payments made in installments following the death
of such Participant, the Administrator may, upon consideration of the
application of the duly appointed administrator or executor of the Participant's
estate, or such beneficiaries as have been named by the Participant, direct that
the balance of the Participant's Deferred Compensation Account be paid in a
single payment. The payment shall be made at the time specified by the
Administrator.
4.5 Unforeseeable Emergency. A Participant may request the Administrator to make
payment in the care of an unforeseeable emergency. For purposes of this Plan, an
unforeseeable emergency is severe financial hardship to the Participant
resulting from a sudden and unexpected illness or accident of the Participant or
of a dependent (as defined by relevant provisions of law) of the Participant,
loss of the Participant's property due to casualty, or other similar
extraordinary and unforeseeable circumstances arising as a result of events
beyond the control of the Participant. The circumstances that will constitute an
unforeseeable emergency will depend upon the facts of each case, but, in any
case, payment may not be made to the extent that such hardship is or may be
relieved (i) through reimbursement or compensation by insurance or otherwise,
(ii) by liquidation of the Participant's assets, to the extent the liquidation
of such assets would not itself cause severe financial hardship, or (iii) by
cessation of deferrals under the Plan. Examples of what are not considered to be
unforeseeable emergencies include the need to send a Participant's child to
college or the desire to purchase a home. Withdrawals of
amounts because of an unforeseeable emergency must only be permitted to the
extent reasonably needed to satisfy the emergency need.
5. General Provisions.
5.1 Participant's Rights Unsecured. The right of any Participant to receive
future payments of cash or Stock under the provisions of the Plan shall be an
unsecured claim against the general assets of the Corporation or the Bank, as
appropriate.
5.2 Assignability. No right to receive payments or distributions under the Plan
shall be transferable or assignable by a Participant, except by will, by the
laws of descent and distribution or by a court of competent jurisdiction. Any
other attempted assignment or alienation of payments under the Plan shall be
void and of no force or effect.
5.3 Administration. Except as otherwise provided herein, the Plan shall be
administered by the Administrator, who shall have the authority to adopt rules
and regulations for carrying out the Plan and who shall interpret, construe and
implement the provisions of the Plan.
5.4 Amendment. The Plan may at any time or from time to time be amended,
modified or terminated by the Corporation and/or the Bank, provided that no 7 8
amendment, modification or termination (a) shall, without the consent of the
Participant and the approval of the Board of Directors, adversely affect the
balance of a Participant's Deferred Compensation Account at that time or (b)
permit payment of the balance of a Participant's Deferred Compensation Account
prior to the date of payment specified in Section 4.2 (except for payments
provided in Section 4.4 or Section 4.5).
5.5 Legal Opinions. The Administrator may consult with legal counsel, who may be
counsel for the Corporation or other counsel, with respect to the
Administrator's obligations or duties hereunder, or with respect to any action,
proceeding or any question of law, and shall not be liable with respect to any
action taken or omitted to be taken, by the Administrator in good faith pursuant
to the advice of such counsel.
5.6 Liability. Any decision made or action taken by the Board of Directors, the
Administrator, or any employee of the Corporation or any of its subsidiaries
arising out of or in connection with the construction, administration,
interpretation or effect of the Plan shall be within their or its absolute
discretion and shall be conclusive and binding on all parties. Neither the
Administrator nor any member of the Board of Directors, and no employee of the
Corporation or of any of its subsidiaries, shall be liable for any act or action
hereunder, whether of omission or commission, except in circumstances involving
bad faith, or for any act of any other member or employee or of any agent to
whom duties in connection with the administration of the Plan have been
delegated.
5.7 Construction. The singular shall include the plural, where appropriate.
Exhibit 10.2
THE CHASE MANHATTAN CORPORATION
Post-Retirement Compensation Plan for Non-Employee Directors
(As amended and restated effective May 21, 1996.)
SECTION 1. Plan. This plan is the Chase Manhattan Corporation
Post-Retirement Compensation Plan for Non-Employee Directors.
SECTION 2. Definitions. For purposes of the Plan, the following terms
shall have the meanings specified below:
"Administrator" shall mean the person appointed by the Chief Executive
Officer of the Corporation to administer the Plan.
"Board" shall mean the Board of Directors of the Corporation.
"Common Stock" shall mean the shares of common stock, par value $1 per
share, of the Corporation.
"Corporation" shall mean The Chase Manhattan Corporation, a Delaware
corporation.
"Director" shall mean a person serving as a director of the
Corporation.
"Fair Market Value" shall mean the mean between the high and low
selling prices of Common Stock on the date as of which such value is being
determined.
"Outside Director" shall mean any Director of the Corporation who has
never been an employee or officer of the Corporation or a Subsidiary.
"Participant" shall have the meaning assigned to such term in Section
3.
"Subsidiary" shall mean any corporation which at the time qualifies as
a subsidiary of the Corporation under the definition of "subsidiary corporation"
in Section 425(f) of the Internal Revenue Code of 1986, as the same may be
amended from time to time.
"Unit" shall mean a unit which is equal in value to the Fair Market
Value of a share of Common Stock.
SECTION 3. Participants. Effective as of May 21, 1996, the term
"Participant" shall be limited to those Outside Directors who were participating
in the Plan and on such date, the Plan shall be frozen, and no further amounts
shall accrue in respect of any Participant, except as set forth in Section 4(b).
1
SECTION 4. Compensation. (a) Commencing upon a Participant's
retirement, resignation or removal from service as a Director on the Board, or
any failure of a Participant to be reelected as a Director after accepting a
nomination for election, in each case (i) after attaining the age of 70 (or such
other age as may be established from time to time by the Board as the retirement
age), (ii) with the consent of the Board or (iii) because of disability or
health reasons, the Corporation shall pay on May 1 of each year (or on such
other date or dates as the Administrator shall so designate in his sole
discretion) during the Participant's lifetime to each Participant an amount
equal to the dollar value of the annual retainer fee (such dollar value to be
determined by the Administrator from time to time) payable to Directors of the
Corporation at the date the Participant retires, resigns, or is removed from
service as a Director or is not reelected as a Director after accepting a
nomination for election, which amount shall be not less than $25,000 for
Participants ceasing to serve the Corporation in the capacity of Director on or
after January 1, 1990; provided, however, such amount shall be reduced for each
Participant with fewer than ten years of service to the Board as an Outside
Director by ten percent for each year, or part thereof, less than ten years of
service. In calculating the number of years a Participant has served on the
Board, all years served prior to the effectiveness of this Plan and for
Participants who were Directors of Manufacturers Hanover Corporation or who were
Directors of The Chase Manhattan Corporation at the time of its merger with
Chemical Banking Corporation, all years such Participants had served as
directors of such corporation prior to becoming Directors of the Corporation.
shall be included in the calculation.
(b) For purposes of determining the amount payable hereunder to any
Participant retiring, resigning or being removed on or after May 20, 1996, the
following rules shall apply:
(i) any Participant retiring, resigning or being removed on
May 20, 1996, shall be permitted to elect to (A) receive the compensation set
forth in Section 4(a), except that the age specified in Section 4(a) (i) shall
be 65 and such Participant shall be deemed to have performed ten years of
service to the Board as an Outside Director (regardless of his or her actual
years of service); or (B) be treated in the manner set forth in Section 4(b)
(ii) below;
(ii) any Participant retiring, resigning, being removed or
otherwise terminating service as an Outside Director after May 20, 1996 shall,
in lieu of the compensation payable under this Section 4(a), receive an amount
determined pursuant to Section 5; provided that in determining the amount to be
initially credited to the Participant's account under Section 5, each
Participant shall be considered to have performed ten years of service to the
Board as an Outside Director (regardless of his or her actual years of service).
SECTION 5. Deferred Account. (a) The compensation otherwise payable
under Section 4(a) to Participants described in Section 4(b) (ii) or electing to
be so treated under the provisions of Section 4(b) (i) shall be converted to a
present value dollar amount, based on actuarial assumptions satisfactory to the
Administrator, and such dollar amount converted into a number of Units by
dividing such dollar amount by
2
the average of the Fair Market Value of the Common Stock during the period
commencing July 18, 1996 and ending August 5, 1996, inclusive.
(b) The amount so determined pursuant to Section 5(a) shall be treated as
deferred in accordance with Appendix A hereto.
SECTION 6. Nontransferability. No amount due to any Participant shall
be assignable or transferable by a Participant, except by will or the laws of
descent and distribution, and no right or interest of any Participant shall be
subject to any lien, obligation or liability. Any attempted assignment or
alienation of payments hereunder shall be void and of no force or effect.
SECTION 7. Amendment. The Board may amend, suspend or terminate the
Plan or any portion hereof at any time; provided, however, no right under the
Plan of any Participant (including the right to receive future compensation in
specified amounts) immediately prior to any amendment of the Plan shall in any
way be amended, modified, suspended or terminated without such Participant's
prior written consent.
SECTION 8. Withholding. The Corporation shall have the right to deduct
from any and all amounts paid to any Participant under this Plan any taxes
required by law to be withheld therefrom.
SECTION 9. Administration. The Plan shall be administered by the
Administrator who shall have the authority to adopt rules and regulations for
carrying out the Plan, and who shall interpret, construe and implement the
provisions of the Plan.
SECTION 10. Participant's Rights Unsecured. The right of any
Participant to receive future payments under the provisions of the Plan shall be
an unsecured claim against the general assets of the Corporation.
SECTION 11. Effective Date. This Plan became effective on May 13, 1988.
3
Appendix A
SECTION A1. Participants' Account Balances. The Corporation shall maintain an
individual book account under the Plan for each Participant having a deferred
account. Each Participant shall initially have credited to his or her account
the number of Units calculated in respect of such Participant pursuant to
Section 5 hereof. Such account shall continue to be expressed in Units until an
Outside Director has ceased to render services to the Corporation as an Outside
Director. Any dividends paid on Common Stock shall be credited to a
Participant's account in respect of each Unit and deemed to be reinvested in
additional Units based on the Fair Market Value of Common Stock on the dividend
payment date. In addition, the number of Units allocated to a Participant's
account shall be adjusted to reflect stock dividends, splits and
reclassifications, and similar transactions affecting the value of Common Stock.
At the time that the Participant's services as an Outside Director cease,
subject to Section 5 hereof, the account balance will, until such time as it is
paid to the Participant in accordance with the Participant's payment elections,
be allocated among the hypothetical investments permitted under the Plan for
Participants who have ceased to render service as an Outside Director, as such
allocation may be elected by the Participant.
SECTION A2. Payment Elections. (a) General Provisions. In connection with the
commencement of participation in this Plan, each Participant shall make an
election (the "Payment Election") concerning the timing and form of distribution
of the amounts credited to his or her Plan account. Any payment from the Plan
shall commence following termination of the Participant's services to the
Corporation as an Outside Director, but in no event prior to one year after
receipt by the Corporation of the Outside Director's initial Payment Election.
The forms of benefit available under the Plan shall be a lump sum payment or
quarterly, semi-annual or annual installments over a period not to exceed 15
years from the earliest date the director may commence receiving payments
hereunder.
(b) Special Rules. (i) Subsequent Payment Elections may be made by a
Participant, which shall supersede the initial Payment Election, but any such
subsequent Payment Election shall not be valid unless it is made prior to May of
the calendar year preceding the calendar year in which payments to the Director
hereunder are otherwise due to commence.
(ii) If a Participant has elected to receive installment payments of the
amount in his or her account, the Participant may, at the Participant's option,
elect to allocate the account, on or after the date on which he or she ceases to
perform services as an Outside Director, among such forms of hypothetical
investment as may be made available hereunder by the Administrator with
reference to the hypothetical investments made available under the Deferred
Compensation Plan for Non-Employee Directors of The Chase Manhattan Corporation
(the "Deferred Compensation Plan"). Reallocations may be made among hypothetical
investments on the same basis as is permitted under the Deferred Compensation
Plan.
4
SECTION A3. Payments to a Deceased Participant's Estate. (a) In the event of a
Participant's death before the balance of his or her account is fully paid,
payment of the balance of the Participant's account shall then be made to his or
her estate in accordance with the manner selected by the Participant prior to
death, which manner shall provide that: (i) payment shall be made to the
Participant's estate in the same manner as provided with respect to the payments
to the Participant or (ii) the balance of the Participant's account shall be
determined as soon as practicable following his or her death and this amount
shall be paid in a single payment to the Participant's estate as soon as
reasonably practicable thereafter. In the event no election has been made,
payment shall be made in accordance with clause (ii) of the preceding sentence.
(b) In the event of a Participant's death before the balance of his or
her account is fully paid to the estate in installments, the Administrator may,
upon consideration of the application of the duly appointed administrator or
executor of the Participant's estate, direct that the balance of the
Participant's account be paid to the estate in a single payment. The payment
shall be made at the time specified by the Administrator.
5
Exhibit 10.3
Updated for name changes and JPMorgan Merger
DEFERRED COMPENSATION PROGRAM OF
JPMORGAN CHASE & CO.
AND PARTICIPATING COMPANIES
PREAMBLE
The Deferred Compensation Program permits annual deferrals by
certain key officers of all or a portion of their incentive compensation under
the Voluntary Bonus Deferral Plan. The Program permits deferrals of Eligible
Compensation under the 401(k) Excess Savings Plan when certain plan or legal
limits reduce contributions that would be otherwise made by officers and
employees pursuant to the JPMorgan Chase 401(k) Savings Plan, a qualified plan
and also permits additional deferrals for commissioned paid employees under a
Voluntary Compensation Deferral Plan. At the determination of the Administrator,
the Program can include other deferral features.
The Program is a successor to the Deferred Compensation Program of
The Chase Manhattan Corporation and Participating Companies, the Deferred
Compensation Plan of Chemical Bank and Participating Companies, the
Thrift-Incentive portion of TRA 86 Supplemental Benefit Plan of The Chase
Manhattan Bank, N.A. and the J.P. Morgan Deferred IC Program. Balances in each
reference plan are subject to the terms of this Program except as otherwise
provided herein.
Additionally, the Supplemental Executive Retirement Plan of The
Chase Manhattan Bank, N.A. was terminated as of December 31, 1996. The
Supplemental Retirement Accounts, as well as the Pre-1988 frozen annuity which
was converted to a lump sum, became part of a Participant's account hereunder.
The terms and conditions of this Program govern any amount
previously deferred thereunder. This Program became effective January 1, 1996.
2
The Program represents an unsecured, unfunded promise to make
payments in the future.
ARTICLE I
DEFINITIONS
The following are defined terms wherever they appear in the Program.
1.1 "Additional Credit" shall mean the amount specified in Section
3.2(d).
1.2 "Administrator" shall mean the individual holding the title
"Director Human Resources" of the Corporation, who shall be responsible for
those functions assigned to him under the Plan; provided that the term
"Administrator" shall mean the Committee with respect to any discretionary act
hereunder which affects any person subject to Section 16(a) of the Securities
Exchange Act of 1934, as amended.
1.3 "Bank" shall mean JPMorgan Chase Bank NA.
1.4 "Beneficiary" shall mean the persons designated by a
Participant, on a form provided by the Administrator, to receive in the event of
his/her death the value of any undistributed account balance under this Program.
Any designation shall include amounts deferred under the 401(k) Excess Savings
Plan, the Voluntary Bonus Deferral Plan and the Voluntary Compensation Deferral
Plan and amounts transferred to an account under this Program from the JPMorgan
Chase Excess Retirement Plan (formerly the Excess Retirement Plan of The Chase
Manhattan Corporation) and such other amounts deferred under such other plans or
arrangements as may be specified by the Administrator.
1.5 "Benefits Eligible Compensation" shall mean salary, commissions,
draw and production overrides deferred under the Voluntary Compensation Deferral
Plan.
1.6 "Board of Directors" shall mean the Board of Directors of the
Corporation; provided that any action taken by a duly authorized committee of
the Board of
3
Directors (including any action described in Section 5.4) within the scope of
authority delegated to it by the Board shall be considered an action of the
Board of Directors for the purpose of this Plan.
1.7 "Chemical Plan" shall mean the Deferred Compensation Plan of
Chemical Banking Corporation and Participating Companies as in effect on
December 31, 1996.
1.8 "Code" shall mean the Internal Revenue Code of 1986, as amended.
1.9 "Committee" shall mean the Compensation and Management
Development Committee of the Board of Directors.
1.10 "Corporation" shall mean J.P. Morgan Chase & Co.
1.11 "Deferral Percentage" shall mean the percentage elected by an
Eligible Employee described in Section 2.1(d) on an Election Form under the
Qualified Plan; provided that no Deferral Percentage can be elected unless the
individual has elected a Pre-Tax Contribution rate of 5% under the Qualified
Plan; provided further that the Deferral Percentage shall not exceed 10% for
period commencing January 1, 2000 and ending December 31, 2001 and 15%
commencing January 1, 2002.
1.12 "DSIB" shall mean the hypothetical investment choice described
in Section 3.3(b).
1.13 "Election Form" shall mean the method specified by the
Administrator to participate in the Program and to make deferral and
hypothetical investment elections under the Program. Such methods may include,
but not be limited to, interactive voice response, internet, and other
electronic means.
1.14 "Eligible Compensation" shall have the meaning specified in the
Qualified Plan.
1.15 "Eligible Employee" shall mean an Employee described in Section
2.1.
4
1.16 "Employee" shall mean an individual whose employment
classification is that of a regular full-time employee and who is on a United
States payroll of a Participating Company.
1.17 "Former Participant" shall mean a Participant whose employment
has terminated and whose account balance under the Program has not been fully
distributed.
1.18 "J.P. Morgan Deferred IC Program" shall mean the incentive
compensation program providing for deferral of bonuses sponsored by J.P. Morgan
& Co. Incorporated, the balances of which are subject to the terms of this
Program.
1.19 "IPA" shall mean the hypothetical investment choice described
in Section 3.3.(b).
1.20 "401(k) Excess Savings Plan" shall mean that feature of the
Program allowing deferrals of Eligible Compensation on a per pay period basis.
1.21 "Legal Limit" shall mean the dollar limitation imposed by
Section 401(a)(17) of the Code on the amount of Eligible Compensation taken into
account in computing benefits under the Qualified Plan for a calendar year or
the limits imposed under Section 402(g) and Section 415 of the Code. In
addition, if so specified by the Administrator for any calendar year, "Legal
Limit" shall also mean any reduction in Pre-Tax Contributions or matching
contributions under the Qualified Plan because of the expected application of
Section 401(k)(3) of the Code or Section 401(m)(3) of the Code.
1.22 "Participant" shall mean each Eligible Employee of a
Participating Company described in Section 2.1 who participates in the Program
in accordance with the terms and conditions applicable to a deferral arrangement
offered under the Program.
1.23 "Participating Company" shall mean: (a) the Corporation and (b)
each Related Company which has been authorized by the Administrator to
participate in the Program and has agreed to comply with the provisions of the
Program.
5
1.24 "Pre-Tax Contributions" shall have the meaning specified in the
Qualified Plan.
1.25 "Program" shall mean the Deferred Compensation Program of The
Chase Manhattan Corporation and Participating Companies as in effect from time
to time, which Program includes the 401(k) Excess Savings Plan, Voluntary Bonus
Deferral Plan and Voluntary Compensation Deferral Plan and such other deferral
features or plans as the Administrator may specify
1.26 "Qualified Plan" shall mean the JPMorgan Chase 401(k) Savings
Plan.
1.27 "Related Company" shall mean a corporation of which more than
51% of the combined voting power of all classes of stock entitled to vote or
equity interest is owned directly or indirectly by the Corporation or a
partnership, joint venture or other unincorporated entity of which more than 51%
of the capital, equity or profits interest is owned directly or indirectly by
the Corporation.
1.28 "SERP Amounts" shall mean the amounts described in Sections
6.2(a)(i) and (ii) plus the investment experience thereon.
1.29 "Supplemental Executive Retirement Plan" shall mean the
Supplemental Executive Retirement Plan of The Chase Manhattan Bank, N.A.
1.30 "Total and Permanent Disability" or "Totally Disabled" shall
mean a disability that, in the determination of the Administrator, would qualify
an individual for benefits under a long term disability program maintained by
the Corporation or a Related Company.
1.31 "TRA Supplemental Retirement Plan" shall mean the TRA 86
Supplemental Retirement Plan of The Chase Manhattan Bank, N.A.
1.32 "Valuation Date" shall mean the close of business on the last
business day of each calendar month for any period prior to July 1, 1999 and
shall have the meaning set forth in Qualified Plan for periods on or after July
1, 1999; provided that the Administrator may specify in his/her sole discretion
a different Valuation Date or Dates for any investment choice
6
provided under the Program and may apply such different Valuation Dates on an
individual by individual basis.
1.33 "Voluntary Bonus Deferral Plan" shall mean that feature of the
Program allowing deferral of annual incentive compensation payable in the form
of a bonus.
1.34 "Voluntary Compensation Deferral Plan" shall mean that feature
of the Program permitting the deferral of Benefits Eligible Compensation on a
per pay period basis for commissioned employees.
ARTICLE II
PARTICIPATION
2.1 ELIGIBILITY. The Employees who shall be eligible to participate
in the Program are those officers and other key employees of a Participating
Company who:
(a) under the Voluntary Bonus Deferral Plan:
(i) are participating in a cash incentive plan permitting
deferral of cash bonuses; and
(ii) have a position or salary grade with a Participating
Company that has been designated by the Administrator as
eligible for participation in the Plan; or
(iii) have been specifically authorized by the Administrator
to participate in the Plan.
(b) under the Voluntary Compensation Deferral Plan:
(i) earned Benefit Eligible Compensation in a prior calendar
year in excess of the Legal Limit for the period
specified by the Administrator; and
7
(ii) have a position or salary grade with a Participating
Company that has been designated by Administrator as
eligible for participation in the Plan.
(c) under the 401(k) Excess Savings Plan for the period of January
1, 1997 through December 31, 1999:
(i) were participating in the Qualified Plan electing to
make Pre-Tax Contributions during a calendar year; and
(ii) were subject to the Legal Limit; and
(iii) were described in either Section 2.1(a)(ii) or (iii).
(d) under the 401(k) Excess Savings Plan after December 31, 1999:
(i) are not permitted by the terms of the Qualified Plan to
make Pre-Tax Contributions during a calendar year in
excess of a 5 percent deferral rate, and
(ii) are designated as eligible to participate in the 401(k)
Excess Savings Plan by the Administrator.
2.2 DEFERRAL ELECTIONS.
(a) Voluntary Bonus Deferral Plan. An Eligible Employee may annually
elect to defer incentive compensation and participate in the Voluntary Bonus
Deferral Plan by delivering a properly completed Election Form to the
Administrator; and, upon making such irrevocable election to defer incentive
compensation, such Eligible Employee shall be a Participant.
(b) Voluntary Compensation Deferral Plan. An Eligible Employee may
annually elect to defer Benefits Eligible Compensation up to the maximum
percentage specified by the Administrator commencing with the first pay period
in a calendar year by delivering a
8
properly completed Election Form to the Administrator. Upon making such
irrevocable election by delivering the Election Form, such Eligible Employee
shall be a Participant.
(c) 401(k) Excess Savings Plan. (i) Effective as of December 31,
1999, by electing a Deferral Percentage on an Election Form (or continuing an
election of such a percentage), an Eligible Employee thereby elects to have an
amount each per pay period deferred under the 401(k) Excess Savings Plan.
(ii) An Eligible Employee will automatically become a Participant
and will have amounts deferred under the 401(k) Excess Savings Plan after the
applicable Legal Limit is reached under the Qualified Plan based on the
percentage election made for the Qualified Plan.
(iii) Prior to December 31, 1999, an Eligible Employee was required
to elect to defer Eligible Compensation under the 401(k) Excess Savings Plan
(after the applicable Legal Limit was reached for the calendar year under the
Qualified Plan) by delivering a properly completed Election Form to the
Administrator.
2.3 TIMING AND EFFECTIVE DATE OF ELECTIONS.
(a) Any deferral election under the Voluntary Bonus Deferral
Plan shall be made at least three months prior to the end of the calendar year
to which the incentive compensation relates. Such election shall be irrevocable
following the end of the election period and shall be effective with respect to
any incentive compensation to be paid in the calendar year following the date of
the election.
(b) Any deferral election under the Voluntary Compensation
Deferral Plan shall be made at least three months prior to the beginning of the
calendar year to which the election relates. Such election shall be irrevocable
following the end of the election period and shall be effective for Benefit
Eligible Compensation to be received in the calendar year following the date of
the election.
(c) Any deferral election under the 401(k) Excess Savings Plan
and Deferral Percentage shall be made at the same time as any election under the
Qualified Plan
9
and shall be effective at the same time as would an election under the Qualified
Plan be effective.
(d) Notwithstanding the dates specified in this Section 2.3,
the Administrator may prescribe an earlier or later date by which Participant
must elect to defer compensation.
(e) Under no circumstances may a Participant at any time defer
compensation to which the Participant has attained a legally enforceable right
to receive.
2.4 TERMINATION OF 401(K) EXCESS SAVINGS ELECTION. An election to
defer Eligible Compensation under the 401(k) Excess Savings Plan will terminate
on the earlier of (i) termination of employment, (ii) ineligibility to
participate in the Qualified Plan, or (iii) filing of an election by such date
as may be specified by the Administrator to cease deferrals.
2.5 TERMINATION OF A VOLUNTARY COMPENSATION DEFERRAL PLAN ELECTIONS.
An election to defer Benefits Eligible Compensation under the Voluntary
Compensation Deferral Plan will terminate on the earlier of (i) termination of
employment, (ii) the end of the calendar year to which the election relates, or
(iii) such earlier date as the Administrator may specify.
ARTICLE III
COMPENSATION DEFERRED
3.1 ACCOUNT.
(a) With respect to deferrals under this Program, a bookkeeping
account shall be established for each Participant. Under the Program, amounts
deferred by a Participant, along with hypothetical income or losses on such
amounts (including Additional Credits, if any, with respect to deferrals under
the 401(k) Excess Savings Plan), shall be credited or debited to the account.
10
(b) For purposes of hypothetical investments under Section 3.3, for
periods prior to calendar year 2000, incentive compensation deferred with
respect to a calendar year was considered to be invested as of the first day of
the month immediately following the month in which incentive compensation would
otherwise have been payable. For periods after calendar year 2000, incentive
compensation deferred with respect to a calendar year shall be considered to be
invested as soon as administratively practical following the date on which such
compensation would otherwise have been payable.
(c) For purposes of hypothetical investments under Section 3.3,
deferred Eligible Compensation or Benefit Eligible
Compensation shall be considered to be invested as soon as administratively
practical following the date on which such compensation would otherwise have
been payable.
3.2 AMOUNT OF DEFERRAL.
(a) Voluntary Bonus Deferral Plan. Under the Voluntary Bonus
Deferral Plan, a Participant shall have deferred all or a portion, by percentage
or by dollar amount (as specified on an Election Form), of any bonus or other
incentive award (other than any award payable as shares of common stock of the
Corporation) subject to a minimum of $5,000 that would otherwise be payable in
the calendar year following the election. For these purposes, bonus or incentive
compensation means only compensation otherwise payable in cash to a Participant
for services as an Employee of the Participating Company.
(b) Voluntary Compensation Deferral Plan. Under the Voluntary
Compensation Deferral Plan, a Participant shall have deferred for each pay
period an amount equal to the product of the percentage elected on an Election
Form and Benefit Eligible Compensation (otherwise payable for such pay period).
(c) 401(k) Excess Savings Plan. For calendar year 2000 and
following, a Participant shall have deferred from Eligible Compensation for each
pay period an amount equal to the product of the Deferral Percentage (as in
effect from time to time pursuant to an Election Form) and Eligible
Compensation. In addition, a Participant shall have deferred from Eligible
11
Compensation, in each pay period following the date that the Pre-Tax
Contributions under the Qualified Plan ceased because of the application of the
Legal Limit, an amount equal to the product of the (I) rate of Pre-Tax
Contribution under the Qualified Plan (as in effect) and (ii) Eligible
Compensation for any remaining pay periods.
(d) Additional Credit. To the extent that Eligible Compensation is
being deferred under the 401(k) Excess Savings Plan because of the application
of the Legal Limit, there shall be credited to an individual's account an amount
equal to the product of Eligible Compensation for any pay period remaining in
the calendar year and the lesser of (i) the maximum employer matching
contribution rate under the Qualified Plan or (ii) the rate elected under the
Qualified Plan prior to application of the Legal Limit, unless the Participant
elects subsequently a lower percentage. Such Additional Credit shall vest in
accordance with the schedule set forth in the Qualified Plan. Notwithstanding
the foregoing or anything hereinto the contrary, no Additional Credits will
apply to the accounts of those Participants whose Eligible Compensation in whole
or part consist of commissions, draw or production overrides or to Participants
employed in one of the wholesale businesses of a Participating Company.
(e) Not in Excess. The amount credited to a Participant's account
under Section 3.2(c) and (d) along with the amount credited to such Participant
under the Qualified Plan shall not exceed the amount that would have been
contributed for the Participant but for the application of the Legal Limit.
3.3 HYPOTHETICAL INVESTMENT.
(a) Subject to the provisions of Section 3.4, amounts credited to an
account shall be deemed to be invested, at the Participant's direction, in one
of the investment vehicles offered under the Qualified Plan and shall be
credited with the same rates of returns as provided by the Qualified Plan for
such funds (except for the Chase Common Stock Fund under the Qualified Plan).
Unless otherwise specified by the Administrator, hypothetical investment funds
shall change as the investment vehicle under the Qualified Plan change and shall
be subject to the same charges and expenses as provided for in the Qualified
Plan.
12
(b) In addition to hypothetical investment funds in (a), the Program
provides
(i) Deferred Supplemental Income Benefit ("DSIB"). Amounts treated
as invested in DSIB shall earn the rate of return specified by
the Administrator for that year and future years up to the
January 1, immediately prior to the date of distribution of
the first installment of the DSIB; provided that, however,
with respect to deferrals during a calendar year under the
410(k) Excess Savings Plan or transfers/reallocations of
deferred incentive compensation, the amount designated as
invested in DSIB shall receive the rate specified for the next
succeeding calendar year, and such mid-year deferral or
reallocation shall receive the rate of return of the Stable
Value investment choice until treated as if invested in DSIB.
The DSIB rate of return shall not be applicable if employment
of a Participant terminates with less than five years of
service, or before age 65 with respect to deferrals made
within 12 month of termination of employment. In such
circumstances, that portion of the account shall receive, in
lieu of the DSIB rate, the rate provided by the Stable Value
investment choice for each year deemed invested in DSIB. The
Administrator has the discretion to impose minimum and maximum
allocations to DSIB. A hypothetical investment election in the
DSIB shall only be effective if the Participant cooperates
with the reasonable requests of the Administrator, including
the completion of an insurance application/consent and a
physical; provided further should a Participant revoke his/her
consent to insurance, then no benefit shall be payable under
DISB.
(ii) Inflation-Protected Annuity Benefit ("IPA"). Effective July 1,
2003, the IPA was discontinued for future investments and
amounts pending IPA were treated as invested in the Stable
Value investment choice as of June 30, 2003 unless the
Participant otherwise elected. Amounts treated as invested in
IPA shall earn (a) a rate of return specified by the
13
Administrator for that year and future years, and (b) an
annual inflation adjustment return each year based on changes
in the non-seasonally adjusted Consumer Price Index for Urban
Consumers and year end account balance allocated to IPA, in
either case up to the January 1, immediately prior to the date
of distribution of the first installment of the IPA; provided
that however, with respect to deferrals during a calendar year
under the Excess 410(k) Plan or reallocations of deferred
incentive compensation, the amount designated as invested in
IPA shall receive the rate specified for the next succeeding
calendar year, and such mid-year deferral or reallocation
shall receive the rate of return of the Stable Value
investment choice until treated as if invested in IPA. The
Administrator has the discretion to impose minimum and maximum
allocations to IPA.
(iii) NASDAQ 100 Investment Choice. Amounts treated as invested in
the NASDAQ 100 investment choice shall earn a rate of return
that approximates the rate of return published for the NASDAQ
100 Index .
(c) Amounts treated as invested in the common stock investment
choice (including dividend equivalents) shall be treated as if invested in fixed
shares of common stock of the Corporation ("Common Stock investment choice");
and for valuation purposes, the New York Stock Exchange closing market price for
such stock on the date of any such deemed investment of compensation or dividend
equivalents shall be used.
(d) The Administrator may, in his sole discretion, provide to
classes of Participants and Former Participants, as he shall specify, additional
hypothetical investments currently a Private Equity investment choice and
Multi-Strategy investment choice. With respect to amounts treated as if invested
in such additional hypothetical investments, the Administrator may specify (i)
restrictions on transfers and re-allocations and (ii) a distribution schedule
different from that specified herein; provided that the Administrator may change
such
14
restrictions and distribution schedule, in his discretion, on 30 days
advance notice to Participants and Former Participants.
3.4 LIMITATIONS ON HYPOTHETICAL INVESTMENTS. Notwithstanding the
provisions of Section 3.3, the Administrator may, in his sole discretion
(i) replace any investment vehicle with a deemed investment
vehicle having comparable investments and investment objectives and
risks substantially similar to the vehicle being replaced, or
(ii) discontinue such vehicle as an alternative for deemed
investment hereunder and provide each affected Participant the
opportunity,
without limiting or otherwise impairing any other right of the Participant under
this Article III regarding changes of investment directions, to redirect the
allocation of the value of such Participant's account that had been deemed
invested in such discontinued investment fund among the remaining deemed
investment vehicles or, in the discretion of the Administrator, into another
deemed investment vehicle established by the Administrator. See Appendix I with
respect to the exercise of the Administrator's discretion for changes to funds
and allocation of existing balances under this Program and the J.P. Morgan
Deferred IC Program as of January 1, 2002. See Appendix II for changes effective
June 30, 2003.
3.5 HYPOTHETICAL INVESTMENT.
(a) As of each Valuation Date, the value of each Participant's
account shall be determined by reference to the value of the hypothetical
investment choice for the particular fund or funds under the Qualified Plan (or,
if applicable, the published rate of return for the NASDAQ Index, the Common
Stock or such other fund as may be made available) in which the portion of the
account is deemed invested plus any income or loss on that hypothetical
investment choice. The amounts credited to DSIB and IAP shall receive the rate
specified at the date of the deemed investment.
15
(b) Except as provided in Section 3.4, amounts for which no
investment election has been made shall be treated as if
invested in the Stable Value Fund, until such election is made.
3.6 ALLOCATION OF HYPOTHETICAL INVESTMENTS; REALLOCATION OF
HYPOTHETICAL INVESTMENTS.
(a) A Participant may elect the manner at such times, as the
Administrator may specify, in which deferrals of future incentive compensation,
Benefits Eligible Compensation or Eligible Compensation, are deemed allocated to
one or more of the hypothetical investments described in Section 3.3.
(b) A Participant or Former Participant may at such times, as the
Administrator may specify, also reallocate/transfer among the hypothetical
investments amounts previously credited to his account on a Valuation Date;
provided that a Participant or Former Participant may not reallocate any amounts
treated as if invested in the Corporation's common stock or DSIB to any other
hypothetical investment choice; provided, further, that for periods prior to
July 1, 1999, a request for reallocation must have been received before the
fifth business date preceding a Valuation Date for it to be effective for that
Valuation Date.
(c) The Administrator in his/her sole discretion may limit transfers
and reallocation among funds under this Program in such manner as he/she may
deem appropriate. The Administrator may exercise such authority on a Program
wide basis or on an individual by individual basis.
3.7 STATEMENT OF ACCOUNT. A statement shall be provided to each
Participant or Former Participant with respect to the amount of his account at
least once a calendar year.
16
ARTICLE IV
PAYMENT OF DEFERRED COMPENSATION
4.1 PAYMENT OF DEFERRED COMPENSATION.
(a) Termination of Employment. Except as provided in subsection (b),
|
upon termination of the Participant's employment with the Corporation or a
Related Company, the value of the account of such individual shall be
distributed to such individual during the month of January or July following the
date of such termination of employment in either installments or a lump sum, as
the Administrator may specify; provided that if the Participant has made a
timely election as solely determined by the Administrator (but always prior to
the calendar year before a payment is due), the Participant shall receive the
value of the account in annual installments or a lump sum in such calendar as
selected by the Participant subject to the consent of the Administrator. The
maximum installment election cannot exceed 15 annual installments, and the
account must be distributed by the date that a Participant attains age 80. An
installment amount shall be based on the balance of an account divided by the
number of installments remaining to be made.
(b) J.P. Morgan Deferred IC Program. Notwithstanding (a) above,
Participants in the J.P. Morgan Deferred IC Program whose employment terminated
on or before December 31, 2001 or who were receiving as of October 31, 2001
distributions from such Program remain subject to the terms of the J.P. Morgan
Deferred IC Program. In the case of other Participants in the J.P. Morgan
Deferred IC Program, their balances became subject to the terms and conditions
of this Program effective January 1, 2002.
(c) Total and Permanent Disability. Upon a termination of employment
due to a Total and Permanent Disability of a Participant, the Administrator may,
in his or her sole discretion, distribute the account under the Program
distributed pursuant to Section 4.1(a).
17
(d) In-Service Withdrawal. A Participant at the date of an election
to participate with respect to a deferral of incentive compensation (or with
respect to the Eligible Compensation or Benefits Eligible Compensation Plan on
the date specified by the Administrator for deferrals in the next succeeding
year) may elect a specific year during active employment in which to begin
receiving the portion of the Account representing such deferred incentive
compensation; provided that such date is at least two years after the deferred
amount would have been paid if it were not deferred; provided further that such
election shall not apply to DSIB, IPA or other investment choices as specified
by the Administrator.
(e) Shares of Common Stock, DSIB and IPA. (i) The portion of an
account treated as if invested in the Common Stock investment choice shall be
distributable solely in shares of the common stock of the Corporation and shall
be distributed as set forth in Section 4.1(a), (b) or (c) above.
(ii) The portion of the account treated as if invested in the DSIB
shall be paid in 15 equal, annual installments starting in January of the year
following termination of employment, unless Administrator in his/her sole
discretion specifies a later date. DSIB payments shall not commence prior to
termination of employment.
(iii) The portion of the account treated as if invested in the IPA
shall be paid in 15 annual installments, calculated as a 15 year annuitized
amount based on the specified interest rate for the year of deferral into IPA.
Installments payments (with the exception of the first installment) shall
receive an annual inflation adjustment as described Section 3.3(b)(iii).
Distributions shall commence in January of the year following termination of
employment, unless the Administrator in his/her sole discretion specifies a
later date. IPA payments shall not commence prior to termination of employment.
(e) Shares Available for Issuance. An aggregate of 500,000 shares of
authorized but unissued shares of common stock of the Corporation has been
reserved for issuance pursuant to this Program, as subject to adjustment
provided for in Section 5.8.
18
(f) Valuation. For purposes of distribution, the balance of an
account shall be valued as of the Valuation Date immediately preceding the date
that the balance of such account or the particular installment thereof is to be
distributed.
4.2 FINANCIAL EMERGENCY PAYMENTS. Notwithstanding any other
provisions of this Plan, if the Administrator determines, after consideration of
an application of a Participant or Former Participant, such individual has a
financial emergency of such a substantial nature and beyond the individual's
control that a contemporaneous payment of incentive compensation previously
deferred under this Plan is warranted, the Administrator may, in his sole and
absolute discretion, direct that all or a portion of the balance of the account
be paid or distributed to the Participant or Former Participant in such manner
and at such time as the Administrator shall specify.
4.3 PAYMENTS TO A DECEASED PARTICIPANT'S BENEFICIARY. In the event
of a death of a Participant or Former Participant before the value of the
account under the Program has been fully distributed, the value of the account
of such individual shall be distributed in a lump sum to the individual's
Beneficiary (or his/her estate in the event that no Beneficiary, including a
secondary/contingent Beneficiary shall survive the Participant or Former
Participant) as soon as practicable thereafter after receipt of all
documentation. Shares of the common stock of the Corporation shall be
distributed with respect to any portion of the account treated as if invested in
the Corporation's common stock. Notwithstanding the foregoing, any compensation
treated as if invested in the DSIB or IPA shall be distributed to the named
Beneficiary (i) if prior to the commencement of DSIB payments, in 15 annual
installments in an amount specified by the Administrator for the calendar year
in which the deferral occurred; or (ii) if after commencement of DSIB or IPA
payments, annual payments in the same amount as the Participant received until
an aggregate 15 payments have been received by the Participant and his
Beneficiary.
19
ARTICLE V
GENERAL PROVISIONS
5.1 PARTICIPANT'S RIGHTS UNSECURED. The right of any Participant or
Former Participant to receive future payments under the provisions of the
Program shall be an unsecured claim against the general assets of (i) the Bank
if the Participating Company employing the Participant at the time that his/her
compensation is deferred was a bank or a bank subsidiary, or (ii) the
Corporation, if the Participating Company employing the Participant at the time
his/her compensation is deferred was not a bank or a bank subsidiary. Deferrals
under the Chemical Plan prior to January 1, 1997 shall be allocated to the Bank
or Corporation depending upon the employer of the Employee on January 1, 1997.
No Participating Company (other than the Corporation or Bank) is liable for
payment of benefits to its Employees under the Plan.
5.2 ASSIGNABILITY. No right to receive payments hereunder shall be
transferable or assignable by a Participant or Former Participant except by will
or by the laws of descent and distribution or by a court of competent
jurisdiction. Any other attempted assignment or alienation of payments hereunder
shall be void and of no force or effect.
5.3 ADMINISTRATION. Except as otherwise provided herein, the Plan
shall be administered by the Administrator who shall have the authority to adopt
rules and regulations for carrying out the provisions of the Plan, who shall
interpret, construe and implement the provisions of the Plan, and whose
determinations shall be conclusive and binding. In carrying out his
responsibilities hereunder, the Administrator may appoint such delegates as
he/she deems appropriate. Notwithstanding anything herein to the contrary, the
Administrator shall have the absolute right to delay any payments for a
reasonable period following the calendar year of termination of employment.
5.4 AMENDMENT. The Plan may at any time or from time to time be
amended, modified or terminated by the Board of Directors or the Administrator;
provided that no amendment, modification, or termination shall, without the
consent of the Participant, reduce the value of Participant's account at that
time; provided further that as to persons subject to
20
Section 16(a) of the Securities Exchange Act of 1934, as amended, no provision
hereunder which relates to the Chase Common investment choice may be amended at
less than six months intervals, and such amendment shall be subject to
stockholder approval if required by SEC Rule 16b-3.
5.5 LEGAL OPINIONS. The Administrator may consult with legal
counsel, who may be counsel for the Corporation or other counsel, with respect
to his obligations or duties hereunder, or with respect to any action,
proceeding or any question at law, and shall not be liable with respect to any
action taken, or omitted, by him in good faith pursuant to the advice of such
counsel.
5.6 LIABILITY. Any decision made or action taken by the Board of
Directors, the Committee, the Administrator or the Corporation, arising out of,
or in connection with, the construction, administration, interpretation and
effect of the Program shall be within their absolute discretion, and will be
conclusive and binding on all parties. Neither the Administrator nor a member of
the Board of Directors of the Corporation or the Committee of the Corporation
shall be liable for any act or action hereunder, whether of omission or
commission, by any other member or employee or by any agent to whom duties in
connection with the administration of the Plan have been delegated or, except in
circumstances involving bad faith, for anything done or omitted to be done in
connection with this Plan.
5.7 CORPORATE REORGANIZATION. In the event that as of any date a
corporation or unincorporated entity ceases to meet the definition of Related
Company, such corporation or entity shall cease to be a Participating Employer
and its employees shall cease to be Participants under the Plan as of the
Valuation Date coincident with or immediately following such date, and this Plan
shall be treated as though a separate plan for the benefit of its employees who
were Participants in the Plan to govern the balances in an account under the
Program as of such Valuation Date.
5.8 ADJUSTMENTS. The maximum aggregate number of shares of common
stock of the Corporation to be issued under this Plan shall be proportionately
adjusted for any increase or decrease in the number of issued shares of common
stock of the Corporation
21
resulting from a subdivision or consolidation of such shares of common stock or
other similar capital adjustment, or the payment of a stock dividend (but only
if such stock dividend is 5% or more), or other increases or decreases in such
shares of common stock effected without receipt of consideration by the
Corporation.
5.9 COMPLIANCE. This Program will be administered to comply with the
Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as
amended.
5.10 ASSUMED LIABILITY. Effective January 1, 1996, this Program
governs the account liability for payments in lieu of Thrift-Incentive Plan
Contributions liability under the TRA Supplemental Benefit Plan of The Chase
Manhattan Bank, N.A. prior to merger with Chemical Bank. All rights and benefits
for such liability are governed by this Program.
5.11 CONSTRUCTION. The masculine gender, where appearing in this
Program, shall be deemed to also include the feminine gender. The singular shall
also include the plural, where appropriate.
ARTICLE VI
OBLIGATIONS UNDER TRA SUPPLEMENTAL PLAN AND
UNDER SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
6.1 TRA SUPPLEMENTAL PLAN. The balances of participants in Section
II of the TRA Supplemental Retirement Plan became part of the account balances
under this Program as of January 1, 1997. Such balances are subject to the terms
and conditions of this Program, including, but not limited to the hypothetical
investments described in Section 3.3.
6.2 SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN. (a) Each Employee who
had a benefit as of December 31, 1996 under the Supplemental Executive
Retirement Plan shall have an account under this Program consisting of:
22
(i) the amount of his/her Supplemental Chase Retirement Account
including any amounts credited for the bonus payable in 1996; and
(ii) if such individual had accrued an annuity frozen as of
December 31, 1988, under the Supplemental Executive Retirement Plan,
an amount derived by converting the accrued life annuity frozen as
of December 31, 1988 utilizing the factors set forth in Section 4.1
of the Retirement Plan.
(b) Unless an employee otherwise elects by February 27, 1997, the amount
derived from the SERP shall be treated as if invested in DSIB;
provided that if the Employee elects another form of benefit of the
hypothetical investment, Employee by virtue of such election
acknowledges that such hypothetical investment may provide rates of
return lower than that provided by the Supplemental Executive
Retirement Plan.
(c) Employees shall vest in the balance of their account subject to SERP
only if they have a Period of Service recognized for Pay Credit
purposes under the Retirement Plan of at least 10 years.
23
APPENDIX I
- In December of 2001, Participants who had account balances under the J.P.
Morgan Deferred IC Program had the opportunity to transfer balances among
the investment choices under that Program to be effective as of January 1,
2002. Balances in the heritage Morgan accounts were then directed to the
new investment choices as follows:
Equity Account-S&P 500 Index Investment Choice
Bond Account-Intermediate Bond Investment Choice
Balanced Account-Moderately Aggressive Lifestyle Investment Choice
Deferred Cash Account-Short-Term Fixed Income Investment Choice
International Equity Account-International Equity Index Investment Choice
NASDAQ Account-NASDAQ 100 Index Investment Choice
MIPs Account-remain in place as IPA Investment Choice
DIBA Account-remain in place as DSIB Investment Choice
- Starting on January 7, 2002, heritage Morgan Participants had the
opportunity to transfer/reallocate balances (other than the DSIB
investment choice, IPA investment choice and Common Stock investment
choice) on a daily basis.
24
APPENDIX II
Effective June 30, 2003, the Large Cap Blend investment choice was eliminated as
an investment choice under the Program. Any amounts remaining in that investment
choice on June 30, 2003, as well as future contributions, were automatically
treated as invested in the S&P 500 Index investment choice.
Exhibit 10.5(a)
THE CHASE MANHATTAN 1994 LONG-TERM INCENTIVE PLAN EFFECTIVE
MAY 1, 1994
1. PURPOSE The purpose of The Chase Manhattan 1994 Long-Term Incentive Plan (the
"Plan") is to advance the interests of The Chase Manhattan Corporation ("CMC")
and its Subsidiaries by providing long-term incentive awards and stock ownership
opportunities to certain key employees (including officers and directors who are
employees) who contribute significantly to the longer term performance of CMC
and its Subsidiaries. In addition, the Plan is intended to enhance the ability
of CMC and its Subsidiaries to attract and retain individuals of superior
managerial ability and to motivate such key employees to exert their best
efforts towards the future progress and profitability of CMC and its
Subsidiaries. For purposes of this Plan, a Subsidiary shall be any corporation
in which CMC has a direct or indirect ownership interest, including any
corporation in which CMC acquires any such interest after the adoption of this
Plan, but only if CMC owns or controls, directly or indirectly, stock possessing
not less than 50 percent of the total combined voting power of all classes of
stock in such corporation.
2. ADMINISTRATION AND INTERPRETATION
a. ADMINISTRATION. The administration and operation of the Plan shall be vested
in the Compensation Committee of the Board of Directors of CMC, or such other
committee of such Board of Directors which shall succeed to the functions and
responsibilities, in whole or in part, of said Compensation Committee (the
"Committee"). The Committee shall consist of not less than three members of the
Board of Directors of CMC (the "Board of Directors") who are not officers or
employees of CMC or any Subsidiary and who are (i) "disinterested" within the
meaning of Rule 16b- 3 as in effect from time to time under the Exchange Act (as
defined in Section 6(e)) ("Rule 16b-3") and (ii) "outside directors" under
Section 162(m) of the Internal Revenue Code of 1986, as amended (the "Code") and
the regulations promulgated thereunder as in effect from time to time (the
"Section 162(m) Regulations"). No member of the Committee shall be entitled to
participate in the Plan. The Committee shall have the authority, consistent with
the provisions of the Plan, to determine the provisions of the awards to be
granted under the Plan; to determine the form of any such award; to interpret
the Plan and any award granted under the Plan; to adopt, amend and rescind rules
and regulations for the administration of the Plan and the awards granted under
the Plan; and to make all determinations in connection therewith which may be
necessary or advisable. The day-to-day administration of the Plan shall be
carried out by such officers and employees of The Chase Manhattan Bank (National
Association) as shall be designated from time to time by the Committee.
b. INTERPRETATION. The interpretation and construction by the Committee of any
page 1
provisions of the Plan or of any award granted under the Plan and any
determination by the Committee under any provision of the Plan or any such award
shall be final and conclusive.
c. LIMITATION ON LIABILITY. Neither the Board of Directors nor the Committee,
nor any member of either, shall be liable for any act, omission, interpretation,
construction or determination made by the Committee or any member thereof in
connection with the Plan in good faith, and the members of the Board of
Directors and the members of the Committee shall be entitled to indemnification
and reimbursement by CMC in respect of any claim, loss, damage or expense
(including counsel fees) arising therefrom to the full extent permitted by law
and under any directors and officers liability insurance coverage which may be
in effect from time to time.
d. RESERVED AUTHORITY OF THE BOARD OF DIRECTORS. The determinations by the
Committee as to: (i) the Incentive Stock Options (as defined in Section 4(b)(2))
and/or Non-qualified Stock Options (as defined in Section 4(b)(3)) to be granted
to a senior executive officer of CMC who is a member of the Board of Directors
and the aggregate number of Incentive Stock Options and/or Non-qualified Stock
Options to be granted to all other eligible employees pursuant to Section
4(b)(1); (ii) the Stock Appreciation Rights (as defined in Section 4(c)) to be
granted pursuant to Section 4(c) to any optionee who is a senior executive
officer of CMC and who is a member of the Board of Directors and who has been
granted Options (as defined in Section 4(b)(1)); and/or (iii) the aggregate
number of Restricted Stock Units (as defined in Section 5) which may be granted
to all eligible individuals under the Plan pursuant to Section 5(b); shall be
subject to the review and approval of the members of the Board of Directors who
are both "disinterested" under Rule 16b-3 and "outside directors" under Section
162(m) of the Code and the Section 162(m) Regulations only if such review and
approval (a) shall not cause the administration of the Plan to be other than
"disinterested" under Rule 16b-3 and (b) shall allow CMC to maintain the
deductibility of certain compensation paid pursuant to this Plan under Section
162(m) of the Code and the Section 162(m) Regulations, as determined by counsel
for CMC.
3. SHARES SUBJECT TO AWARDS UNDER THE PLAN
a. LIMITATION ON NUMBER OF SHARES. The shares subject to Options and authorized
for issuance upon the exercise of Stock Appreciation Rights ("Option Shares"),
and the shares subject to awards of Restricted Stock Units, shall be shares of
CMC's authorized but unissued common stock, par value $2.00 per share ("Common
Stock"), and shares, if any, of such Common Stock held as treasury stock by CMC.
The aggregate number of shares of Common Stock that may be made the subject of
awards under the Plan (a) during calendar year 1994 shall not exceed 100,000
shares and (b) during calendar year 1995 shall not exceed one and one-half
percent (1.5%) of the number of shares of Common Stock outstanding on December
31, 1994. The aggregate number of shares of Common Stock that may be made the
subject of awards under the Plan during any calendar year subsequent to calendar
year 1995 shall not exceed the sum of (i) one and one-half percent (1.5%) of the
number of shares of Common Stock outstanding on December 31 of the preceding
calendar year and (ii) the
page 2
number of shares of Common Stock as to which awards could have been made under
the Plan on December 31 of the preceding calendar year but as to which awards
were not made during such year. If any Option awarded under this Plan expires or
terminates unexercised or any award of Restricted Stock Units (or shares of
Restricted Stock into which it may be converted) under this Plan expires or is
terminated for any reason, the shares allocable to the unexercised or terminated
portion of such Option or award may again be made the subject of awards under
the Plan. Such shares shall be included in the amount determined pursuant to
clause (ii) of the immediately preceding paragraph as of the end of the year in
which such termination or expiration occurs.
b. ADJUSTMENTS OF NUMBER OF SHARES. The number of shares that may be made the
subject of awards as provided in Section 3(a) shall be subject to appropriate
adjustment, from time to time, in accordance with the provisions of Sections
4(d)(8) and 4(d)(9). In the event of a change in the Common Stock of CMC which
is limited to a change in the designation thereof to "Capital Stock" or other
similar designation, or to a change in the par value thereof, or from par value
to no par value, without increase or decrease in the number of issued shares,
the shares resulting from any such change shall be deemed to be Common Stock
within the meaning of the Plan.
4. STOCK OPTIONS AND STOCK APPRECIATION RIGHTS
a. ELIGIBILITY. The individuals who shall be eligible to receive Options and
Stock Appreciation Rights under the Plan shall be all salaried employees
(including officers and directors who are salaried employees) of CMC or of any
Subsidiary as the Committee from time to time shall determine as provided below.
b. GRANTS OF OPTIONS. (1) In General. Options granted under the Plan may be
either "Incentive Stock Options" or "Non-qualified Stock Options" (collectively
referred to herein as "Options"); provided, however, that no Option Shares under
the Plan shall be subject to more than one Option; and provided, further, that
no Incentive Stock Options may be granted under the Plan after February 15,
2004. Options granted under the Plan shall be of such type and for such number
of Option Shares (subject to the limitation contained in Section 3), as the
Committee shall designate at the time of grant; provided, however, that the
maximum number of shares of Common Stock with respect to which Options or Stock
Appreciation Rights shall be granted in any calendar year to any individual
under this Plan shall not exceed ten percent (10%) of the total number of shares
of Common Stock that may be made the subject of awards during any calendar year
under Section 3 of the Plan as determined on the effective date of the Plan for
calendar year 1994 and for any calendar year thereafter, on the first day of
such calendar year; provided, further, that such maximum number of shares shall
be subject to appropriate adjustment, from time to time, in accordance with the
provisions of Sections 4(d)(8) and 4(d)(9). The Committee, at any time and from
time to time, may authorize the granting of Incentive Stock Options and/or
Non-qualified Stock Options
page 3
to any individual eligible to receive the same. (2) Incentive Stock Options. The
term "Incentive Stock Option" shall mean an Option which is intended to qualify
as an incentive stock option under Section 422 of the Code. Subject to
adjustment as provided in Section 3(b), the aggregate number of shares of Common
Stock as to which Incentive Stock Options may be granted under the Plan shall
not exceed 5,000,000 shares of Common Stock. Such number of shares shall be
subject to appropriate adjustment, from time to time, in accordance with the
provisions of Sections 4(d)(8) and 4(d)(9). (3) Non-qualified Stock Options. The
term "Non-qualified Stock Option" shall mean any Option which is not an
Incentive Stock Option. Except as specifically provided herein, the provisions
of this Plan shall apply in the same manner to Incentive Stock Options and to
Non-qualified Stock Options.
c. GRANTS OF STOCK APPRECIATION RIGHTS. (1) In General. The term "Stock
Appreciation Right" shall mean the right to receive from CMC upon surrender of
an Option or a portion thereof, but without any payment to CMC, an amount equal
to the value (based on Market Value Per Share (as defined in Section 4(d)(4)),
on the exercise date, of the total number of Option Shares for which the Stock
Appreciation Right is exercised, less the option price which the optionee would
have otherwise been required to pay upon purchase of such Option Shares. The
amount payable by CMC upon the exercise of a Stock Appreciation Right may be
paid in cash or in Option Shares or in any combination thereof, as the Committee
in its sole discretion shall determine. No fractional shares shall be issuable
pursuant to any Stock Appreciation Right. The Committee in the same manner as is
provided with respect to Options in Section 4(b) may, from time to time,
authorize the granting of Stock Appreciation Rights to any optionee who has been
granted Options. Each Stock Appreciation Right shall relate only to Option
Shares subject to a specific Option granted under this Plan and may be granted
concurrently with the Option to which it relates or at any time prior to the
exercise, termination or expiration of such Option. However, at no time shall
the total number of Option Shares with respect to which Stock Appreciation
Rights remain outstanding and unexercised exceed the total number of Option
Shares subject to Options then outstanding and unexercised. (2) Limitations on
Stock Appreciation Rights. The Committee may fix, with respect to Stock
Appreciation Rights granted under the Plan, such waiting periods, exercise dates
or other limitations as it shall deem appropriate; provided, however, that no
Stock Appreciation Right shall be exercisable prior to the date when the Option
to which it relates first becomes exercisable or after the expiration of such
related Option. In addition, the Committee may impose at any time after the
grant of any Stock Appreciation Right a total prohibition on the exercise of
such Stock Appreciation Right for such period or periods as it, in its sole
discretion, deems to be in the best interest of CMC.
d. TERMS OF OPTIONS AND STOCK APPRECIATION RIGHTS. Options granted pursuant to
this Plan shall be evidenced by agreements ("Stock Option Agreements"). Stock
Appreciation Rights, if any, shall be evidenced by agreements amending and
forming a part of the Stock Option Agreements to which such Stock Appreciation
Rights relate. Stock Option Agreements, and the Options and Stock
page 4
Appreciation Rights, if any, represented thereby, shall comply with and be
subject to the following terms and conditions and may contain such other
provisions, consistent with the terms of this Plan, as the Committee shall deem
advisable. (1) Medium of Payment. Upon exercise of an Option, the option price
shall be payable to CMC (i) in United States dollars in cash or by check, bank
draft or money order payable to the order of CMC (or such other forms of payment
as the Committee may determine to be acceptable) or (ii) by tendering to CMC
shares of Common Stock owned by the optionee having an aggregate Market Value
Per Share as of the date of exercise which is not greater than the option price
and by paying the remainder of the option price as provided in (i) above.
Payment instruments will be received subject to collection. (2) Number of
Shares. Each Stock Option Agreement shall state the total number of Option
Shares which are subject to the Option and, if applicable, the total number of
Option Shares in respect of which any related Stock Appreciation Right shall be
exercisable. (3) Option Price. The option price for each Option Share shall be
not less than the Market Value Per Share on the date of the granting of the
Option. (4) Market Value Per Share. The Market Value Per Share as of any
particular date shall be the mean between the highest and lowest quoted selling
prices for shares of Common Stock as reported on the composite tape on such date
(or, if such date shall not be a business day, then the next preceding day which
shall be a business day); or, if no sale takes place, then the mean between the
bid and asked prices on such date; and if no bid and asked prices are quoted for
such date, then such value as shall be determined by such method as the
Committee shall deem to reflect fair market value as of such date. (5) Term. The
term of each Option and related Stock Appreciation Right shall be determined by
the Committee at the date of grant; provided, however, that each Option and
related Stock Appreciation Right shall expire not more than ten years from the
date the Option is granted. (6) Date of Exercise. Each Stock Option Agreement
shall state that the Option or Stock Appreciation Right granted therein may not
be exercised in whole or in part for any period or periods of time specified in
such agreement or otherwise as specified by the Committee. Except as may be so
specified, any Option or related Stock Appreciation Right may be exercised in
whole at any time or in part from time to time during its term; provided,
however, that no Option, or portion thereof, or related Stock Appreciation Right
may be exercisable until at least one year after the date of grant of such
Option. (7) Termination of Employment. In the event that an optionee's
employment by CMC or any of its Subsidiaries shall terminate, the optionee's
Options and related Stock Appreciation Rights, if any, shall terminate
immediately, except as hereinafter provided in this subsection. The Committee,
in its sole discretion, may determine that the optionee's Options and/or related
Stock Appreciation Rights, if
page 5
any, to the extent exercisable immediately prior to such termination of
employment, may remain exercisable for a designated period of time not to exceed
90 days after such termination of employment. If any termination of employment
is due to retirement with the consent of CMC, the optionee shall have the right,
subject to the provisions of subsections (5) and (6) above, to exercise each of
his Options and related Stock Appreciation Rights, if any, at any time until the
end of the term of each such Option and related Stock Appreciation Right to the
extent that the optionee was entitled to exercise the same immediately prior to
such retirement. Retirement by an optionee on or after the optionee's normal
retirement date in accordance with the provisions of the retirement plan of CMC
or one of its Subsidiaries under which the optionee is then covered shall be
deemed to be retirement with the consent of CMC. Termination of an optionee's
employment due to disability (as determined by the Committee in its sole
discretion) shall be deemed, solely for purposes of this Section 4(d)(7), to be
a retirement with the consent of CMC; provided that if the optionee thereafter
returns to employment with CMC or any of its Subsidiaries, the optionee's
employment shall be deemed for purposes of this Section 4(d)(7) to have never
been terminated. Whether any other termination of employment is to be considered
a retirement with the consent of CMC and whether an authorized leave of absence
or absence on military or government service or for other reasons shall
constitute a termination of employment for the purposes of the Plan shall be
determined by the Committee. If an optionee shall die (whether in the employment
of CMC or any of its Subsidiaries or following the optionee's retirement with
the consent of CMC) while entitled to exercise an Option and related Stock
Appreciation Right, if any, the optionee's estate, personal representative, or
beneficiary, as the case may be, shall have the right, subject to the provisions
of subsections (5) and (6) above, to exercise the Option and related Stock
Appreciation Right, if any, at any time within thirty-six months after the date
of the optionee's death (but in no event later than the expiration of the term
of each such Option and related Stock Appreciation Right, if any), to the extent
that the optionee was entitled to exercise the same immediately prior to the
optionee's death. (8) Recapitalization. The aggregate number of shares
determined under Section 3 and stated in Section 4(b)(2), the maximum number of
shares that may be made the subject of awards of Options or Stock Appreciation
Rights to any individual in any calendar year, the number of Option Shares to
which each outstanding Option and Stock Appreciation Right relates, and the
option price in respect of each such Option and Stock Appreciation Right, shall
all be proportionately adjusted for any increase or decrease in the number of
issued shares of Common Stock resulting from a subdivision or consolidation of
shares or other capital adjustments, or the payment of a stock dividend or other
increase or decrease in such shares, effected without receipt of consideration
by CMC or a Subsidiary; provided, however, that any fractional shares resulting
from any such adjustment shall be eliminated. (9) Certain Mergers or
Consolidations. After a merger of one or more
page 6
corporations into CMC, or after a consolidation of CMC and one or more
corporations (a "Merger Event"), in which CMC shall be the surviving or
resulting corporation, an optionee shall, at the same cost, be entitled upon the
exercise of an Option, to receive (subject to any required action by
stockholders) such securities of the surviving or resulting corporation, as
shall be equivalent, as nearly as practicable, to the nearest whole number and
class of shares of stock or other securities, to the Option Shares which were
then subject to such Option, and such shares of stock or other securities shall,
after such merger or consolidation, be deemed to be Option Shares for all
purposes of the Plan and of the Options and Stock Appreciation Rights granted
under the Plan. (10) Other Transactions. If CMC enters into any agreement with
respect to any transaction which would, if consummated, result in a Merger Event
in which CMC will not be the surviving corporation, the Committee shall, in its
sole discretion, and without liability to any person, determine what actions
shall be taken with respect to outstanding Options and related Stock
Appreciation Rights, if any, including without limitation, the payment of a cash
amount in exchange for the cancellation of the Option and any related Stock
Appreciation Right or requiring the issuance of substitute options, that will
substantially preserve the value, rights and benefits of any affected Options
and/or related Stock Appreciation Rights previously granted hereunder as of the
date of the consummation of the Merger Event. (11) Optionee's Agreement. If, at
the time of the exercise of any Option or Stock Appreciation Right, in the
opinion of counsel for CMC, it is necessary or desirable, in order to comply
with any then applicable laws or regulations relating to the sale of securities,
that the optionee exercising the Option or Stock Appreciation Right shall agree
to hold any Option Shares issued to the optionee for investment and without any
present intention to resell or distribute the same and that the optionee will
dispose of such shares only in compliance with such laws and regulations, the
optionee will, upon the request of CMC, execute and deliver to CMC a further
agreement to such effect.
e. EFFECT OF EXERCISE OF OPTIONS AND STOCK APPRECIATION RIGHTS. The right of an
optionee to exercise an Option shall terminate to the extent that such Option is
exercised and to the extent that the Option Shares subject to such Option are
used to calculate amounts receivable upon the exercise of a related Stock
Appreciation Right. The right of an optionee to exercise a Stock Appreciation
Right shall terminate to the extent that such Stock Appreciation Right is
exercised and, also, to the extent that such optionee exercises the Option to
which such Stock Appreciation Right is related.
f. OPTIONS AND RIGHTS IN SUBSTITUTION FOR STOCK OPTIONS GRANTED BY OTHER
CORPORATIONS. Options and Stock Appreciation Rights may be granted under the
Plan from time to time in substitution for stock options held by employees of
corporations who become salaried employees of CMC or of any Subsidiary as a
result of a merger or consolidation of the employing corporation with CMC or
such Subsidiary, or the acquisition by CMC or a Subsidiary of the assets of the
employing
page 7
corporation, or the acquisition by CMC or a Subsidiary of stock of the employing
corporation with the result that such employing corporation becomes a
Subsidiary. g. APPLICATION OF FUNDS. The proceeds received by CMC from the sale
of Option Shares pursuant to Options will be used for general corporate
purposes.
5. RESTRICTED STOCK UNITS AND RESTRICTED STOCK
a. ELIGIBILITY. The individuals who shall be eligible to receive an award of
Restricted Stock Units under the Plan shall be all salaried employees (including
officers and directors who are salaried employees) of CMC, or of any Subsidiary,
as the Committee from time to time shall determine.
b. AWARDS OF RESTRICTED STOCK UNITS. The Committee, at any time and from time to
time, may determine (subject to the limitation contained in Section 3): 63 10
(i) those eligible individuals, if any, who shall receive an award of Restricted
Stock Units under the terms of the Plan; (ii) the number of Restricted Stock
Units that shall be awarded to each such individual; (iii) the terms and
conditions which must be satisfied for the restrictions and conditions on each
Restricted Stock Unit to be removed, and the period of time during which such
terms and conditions shall apply, which period shall be not less than three
years from the date of the award, unless the Committee otherwise determines, in
which event such period shall not be less than one year from the date of the
award; and (iv) the time and manner in which all or a portion of each award
shall be paid to such individual in accordance with the provisions of Section
5(e).
c. DESCRIPTION OF RESTRICTED STOCK UNITS. A Restricted Stock Unit awarded to an
employee shall entitle the employee to receive, upon the satisfaction of the
terms and conditions established under Section 5(b), a share of Common Stock.
The holder of a Restricted Stock Unit shall be entitled to receive a cash
payment on each dividend payment date for Common Stock as if such Restricted
Stock Unit were a share of Common Stock. The number of shares of Common Stock
subject to an award of Restricted Stock Units shall be appropriately adjusted,
from time to time, in the manner provided in Sections 4(d)(8) and 4(d)(9) for
any stock dividend, stock split, recapitalization, reorganization, merger,
consolidation, split-up or any similar change affecting the Common Stock. After
the satisfaction of the terms and conditions set by the Committee at the time of
the grant of an award of Restricted Stock Units to an employee, the Secretary of
CMC shall be so advised and a certificate for the appropriate number of shares
of Common Stock shall be delivered to the employee. The remaining Restricted
Stock Units granted under such award, if any, shall either be canceled or, if
appropriate under the terms of the award, shall continue to be subject to the
restrictions, terms and conditions set by the Committee at the time of the grant
of the award. The Committee may from time to time before the satisfaction of the
terms and conditions established under Section 5(b) with respect to an award of
Restricted Stock Units determine to convert all or a portion of such Restricted
Stock Units into an equivalent number of shares of Restricted Stock. 64 11
d. DESCRIPTION OF RESTRICTED STOCK. A share of Restricted Stock issued upon the
conversion of a Restricted Stock Unit is a share of Common Stock which may not
be sold, exchanged, pledged, transferred, assigned, hypothecated or otherwise
encumbered or disposed of until the terms and
page 8
conditions set by the Committee at the time of the award of the Restricted Stock
Unit have been satisfied. A share of Restricted Stock shall be subject to the
same restrictions, terms and conditions as applied to the converted Restricted
Stock Unit. If an employee receives shares of Restricted Stock, the employee
shall be the record owner of such shares and shall have all the rights of a
stockholder with respect to such shares, including the right to vote and the
right to receive dividends or other distributions made or paid with respect to
such shares. Any certificate or certificates representing shares of Restricted
Stock shall bear the following legend: The shares represented by this
certificate have been issued pursuant to the terms of an award under The Chase
Manhattan 1994 Long-Term Incentive Plan and may not be sold, exchanged, pledged,
transferred, assigned, hypothecated or otherwise encumbered or disposed of in
any manner until such time as is set forth in the terms of such award dated .
Any new, additional or different securities that an employee may become entitled
to receive with respect to any shares of Restricted Stock by virtue of a stock
dividend, stock split, recapitalization, reorganization, merger, consolidation,
split-up, or any similar change affecting the Common Stock shall be subject to
the same restrictions, terms and conditions as apply to such shares of
Restricted Stock. In order to enforce the restrictions, terms and conditions
which may be applicable to an employee's shares of Restricted Stock, the
Committee may require the employee, upon the receipt of a certificate or
certificates representing such shares, or at any time thereafter, to deposit
such certificate or certificates together with stock powers and other
instruments of transfer, appropriately endorsed in blank, with CMC or an escrow
agent designated by CMC under an escrow agreement in such form as shall be
determined by the Committee. After the satisfaction of the terms and conditions
set by the Committee at the time of an award of Restricted Stock Units to an
employee which are applicable to shares of Restricted Stock, a new certificate,
without the legend set forth above, for the number of shares which are no longer
subject to such restrictions, terms and conditions shall be delivered to the
employee. The remaining shares of Restricted Stock issued with respect to such
award, if any, shall either be canceled or, if 65 12 appropriate under the terms
of the award applicable to such shares, shall continue to be subject to the
restrictions, terms and conditions set by the Committee at the time of the
award.
e. PAYMENT OF RESTRICTED STOCK UNITS AND RESTRICTED STOCK. (1) In General. The
satisfaction of the terms and conditions set by the Committee at the time of an
award of Restricted Stock Units and the delivery of a certificate, without the
legend set forth above, for the portion of such award which is no longer subject
to such restrictions, terms and conditions is hereinafter referred to as the
"payment" of such portion of the award (or the shares of Restricted Stock into
which it may be converted). Subject to the provisions of this Section 5(e) and
Sections 5(c) and 5(d), each award shall be paid at the time and in the manner
specified by the Committee at the time of the award. (2) Payment in the Event of
Termination of Employment. If the employment with CMC of an employee to whom an
award of Restricted Stock Units has been made is terminated for any reason
(including death, but excluding disability (as determined by the Committee in
its sole discretion), which for purposes of this Section 5(e) shall not be
deemed a termination of employment) before satisfaction of the terms and
conditions for the payment of all or a portion of the award, then only such
portion of the award, if any, shall be paid as shall have been specified by the
Committee at the time of the award and the remaining portion of such award shall
be canceled. If an employee to whom Restricted Stock Units have been awarded
dies after satisfaction of the terms and conditions for the payment of all or a
portion of an award but prior to the actual payment of all or such portion of
the award, such payment shall be made to the employee's beneficiary or
beneficiaries at the time and in the same manner that such payment would have
been made to the employee.
6. CHANGE IN CONTROL PROVISIONS.
a. STOCK OPTIONS AND STOCK APPRECIATION RIGHTS. Notwithstanding any provision in
the Plan or in any Stock Option Agreement to
page 9
the contrary, the following provisions shall apply if there is a Change in
Control, as defined in Section 6(e): (1) Any Option or Stock Appreciation Right,
other than an Incentive Stock Option and related Stock Appreciation Rights,
which is not otherwise exercisable at the date of the Change in Control may be
exercised, subject to the provisions of Sections 4(d)(5) and 4(d)(7), at any
time after the date of the Change in Control. 66 13 (2) If an optionee's
employment is terminated within twenty-four months after a Change in Control,
unless such termination is (i) for Cause (as defined in Section 6(e)), (ii) by
reason of death, Disability (as defined in Section 6(e)), or retirement with the
consent of CMC (as defined in Section 4(d)(7)), or (iii) by the optionee without
Good Reason (as defined in Section 6(e)), the optionee shall have the right,
subject to the provisions of Section 4(d)(5), to exercise his Options and Stock
Appreciation Rights at any time within the twenty-four month period after such
termination of employment. After a Change in Control, any purported termination
of an employee's employment (other than by reason of death) shall be
communicated by a Notice of Termination (as defined in Section 6(e)) from CMC to
the employee or from the employee to CMC, as the case may be.
b. RESTRICTED STOCK UNITS AND RESTRICTED STOCK. Notwithstanding any provision of
the Plan or any terms or conditions relating to any Restricted Stock Units or
shares of Restricted Stock to the contrary, in the event of a Change of Control,
the terms and conditions set by the Committee at the time of an award of
Restricted Stock Units shall be deemed to have been satisfied and, within 15
days after the Change in Control, a certificate for the appropriate number of
shares of Common Stock shall be delivered to the employee to whom such
Restricted Stock Units were awarded. Further, at the time of a Change in Control
the terms and conditions with respect to any shares of Restricted Stock issued
under the Plan shall be deemed to have been satisfied and, within 15 days after
the Change in Control, the holder of such shares shall receive a new certificate
for such shares without the legend set forth in Section 5(d).
c. TERMINATION AS A RESULT OF A POTENTIAL CHANGE IN CONTROL. For purposes of
Section 6(a)(2), an employee's employment shall be deemed to have been
terminated following a Change in Control without Cause or by the employee with
Good Reason, if the employee's employment is terminated prior to a Change in
Control without Cause at the request of a Person (as defined in Section 6(e))
who has entered into an agreement with CMC the consummation of which will
constitute a Change in Control or if the employee terminates his employment with
Good Reason prior to a Change in Control (determined by treating a Potential
Change in Control (as defined in Section 6(e)), as a Change in Control in
applying the definition of Good Reason) if the circumstance or event which
constitutes Good Reason occurs at the request of such Person. Further, for all
purposes of Sections 6(a)(1), 6(b) and 6(d), in determining any such employee's
rights to exercise Options and Stock Appreciation Rights, to receive a
distribution of shares of Common Stock with respect to Restricted Stock Units,
or to have the restrictions on shares of Restricted Stock deemed satisfied, a
Change in Control shall be deemed to have occurred immediately prior to the
employee's termination of employment. 67 14
d. RESTRICTION ON POWER TO AMEND AND TERMINATE. Notwithstanding any provision in
the Plan or in any award granted under the Plan to the contrary, while Section 9
of the Plan reserves to the Committee the right, subject to certain limitations
and restrictions, to from time to time and at any time alter, amend, suspend,
discontinue or terminate the Plan and any awards granted under the Plan, no such
action of the Committee, nor any action by the Board of Directors, shall
adversely affect an employee's rights under any award granted under the Plan
without the written consent of such employee if such action is within
twenty-four months after the month in which a Change in Control occurred or is
within twelve months after a Potential Change in Control.
e. DEFINITIONS. For purposes of this Section 6, the following words and
page 10
phrases shall have the meaning specified: (1) "Beneficial Owner" shall have the
meaning defined in Rule 13d-3 of the Exchange Act. (2) "Cause" shall mean,
unless otherwise defined in an employee's individual severance agreement with
CMC or, with respect to an employee who is a participant in CMC's Special
Severance Plan, in such Special Severance Plan (in which case said definition
shall govern), the termination of an employee's employment, after a Change in
Control, as a result of (i) the willful and continued failure by the employee to
substantially perform the employee's duties, as they may be defined from time to
time, with the employee's employers or abide by the written policies of CMC or
the employee's primary employer (other than any such failure resulting from the
employee's incapacity due to physical or mental illness or any such actual or
anticipated failure after the issuance of a Notice of Termination for Good
Reason by the employee) after a written demand for substantial performance is
delivered to the employee by the Corporate Human Resources Executive of CMC,
which demand specifically identifies the manner in which the Corporate Human
Resources Executive believes that the employee has not substantially performed
the employee's duties or has not abided by such written policies, or (ii) the
willful engaging by the employee in conduct which is demonstrably and materially
injurious to CMC or its Subsidiaries, monetarily or otherwise. For purposes of
the preceding sentence, no act, or failure to act, on a employee's part shall be
deemed "willful" unless done, or omitted to be done, by the employee not in good
faith and without reasonable belief that the employee's act, or failure to act,
was in the best interest of CMC and its Subsidiaries. (3) A "Change in Control"
shall be deemed to have occurred if any one of the following conditions shall
have been satisfied: 68 15 (i) any Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of CMC (not including in the securities
beneficially owned by such Person any securities acquired directly from CMC or
its affiliates) representing 25 percent or more of the combined voting power of
CMC's then outstanding securities; or (ii) during any period of twenty-four
consecutive months, individuals who at the beginning of such period constitute
the Board of Directors and any new director (other than a director designated by
a Person who has entered into an agreement with CMC to effect a transaction
described in subsections (i), (iii) or (iv) of this Section) whose election by
the Board of Directors or nomination for election by CMC's stockholders was
approved by a vote of at least two-thirds of the directors then still in office
who either were directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any reason to
constitute a majority of the Board of Directors; or (iii) the stockholders of
CMC approve a merger or consolidation of CMC with any other corporation, or a
plan of complete liquidation of CMC, other than (A) a merger, consolidation or
liquidation which would result in the voting securities of CMC outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or being converted into voting securities of the surviving entity),
in combination with the ownership of any trustee or other fiduciary holding
securities under an employee benefit plan of CMC or a Subsidiary, at least 80
percent of the combined voting power of the voting securities of CMC or such
surviving entity outstanding immediately after such merger, consolidation or
liquidation, or (B) a merger, consolidation or liquidation effected to implement
a recapitalization of CMC (or similar transaction) in which no Person acquires
more than 50 percent of the combined voting power of CMC's then outstanding
securities; or (iv) the stockholders of CMC approve an agreement for the sale or
disposition by CMC (other than to a Subsidiary) of all or substantially all
CMC's assets. Notwithstanding the foregoing, with respect to a particular
employee, a Change in Control shall not include any event, circumstance or
transaction occurring during the twelve- month period following a Potential
Change in Control which results from the action of any entity or group which
includes, is affiliated with or is wholly or partly controlled by one or more
executive officers of CMC in which the employee participates (a "Management
Group"); provided, however, that such action shall not be taken 69 16 into
account for this purpose if it occurs within a twelve-month period following a
Potential Change in Control resulting from the action of any Person which is not
a Management Group. (4) "Date of Termination" shall mean (i) if an employee's
employment is terminated for
page 11
Disability, 30 days after Notice of Termination is given (provided that the
employee shall not have returned to the full-time performance of the employee's
duties during such 30 day period), and (ii) if an employee's employment is
terminated for any other reason, the date specified in the Notice of Termination
(which, in the case of a termination by the employee's employer, shall not be
less than 30 days (except in the case of a termination for Cause) and, in the
case of a termination by the employee, shall not be less than 15 days nor more
than 60 days, respectively, from the date such Notice of Termination is given).
(5) "Disability" shall be deemed to be the reason for the termination of an
employee's employment, if, as a result of the employee's incapacity due to
physical or mental illness, the employee shall have been absent from the
full-time performance of the employee's duties with the employee's employer for
a period of six consecutive months, a Notice of Termination for Disability shall
have been given to the employee, and, within 30 days after such Notice of
Termination is given, the employee shall not have returned to the full-time
performance of the employee's duties. (6) "Exchange Act" shall mean the
Securities Exchange Act of 1934, as amended from time to time. (7) "Good Reason"
for termination by a employee of the employee's employment shall mean, unless
otherwise defined in an employee's individual severance agreement with CMC or,
with respect to an employee who is a participant in CMC's Special Severance
Plan, in such Special Severance Plan (in which case said definition shall
govern), the occurrence (without the employee's express written consent) of any
one of the following acts by the employee's employer, or failure by the
employee's employer to act, unless, in the case of any act or failure to act
described in subsection (i), (iii) or (iv) of this subsection, such act or
failure to act is corrected prior to the Date of Termination specified in the
Notice of Termination given in respect thereof: (i) the assignment to the
employee of any duties materially inconsistent with the nature and status of the
employee's responsibilities immediately prior to a Change in Control, or a
substantial adverse alteration in the nature or status of the employee's
responsibilities from those in effect immediately prior to the Change in
Control; provided, however, that a redesignation of the employee's title or
employer among CMC and its Subsidiaries shall not constitute Good Reason if the
employee's overall duties and status among CMC and its Subsidiaries are not
substantially adversely affected; (ii) a reduction in the employee's annual base
salary as in effect on May 1, 1994 (or the employee's most recent date of hire,
if later), as the same may be increased from time to time, where "annual base
salary" is the employee's regular basic annual compensation prior to any
reduction therein under a salary reduction agreement pursuant to Section 401(k)
or Section 125 of the Code, and, without limitation, shall not include, cost of
living allowances and post allowances for foreign service, fees, retainers,
reimbursements, bonuses, incentive awards, prizes or similar payments; (iii) the
failure by the employee's primary employer to pay to the employee any portion of
the employee's current compensation, or to pay to the employee any portion of an
installment of deferred compensation under any deferred compensation program,
within seven days of the date such compensation is due; or (iv) any purported
termination of the employee's employment which is not effected pursuant to a
Notice of Termination, and for purposes of this Section, no such purported
termination shall be effective. An employee's right to terminate the employee's
employment for Good Reason shall not be effected by the employee's incapacity
due to physical or mental illness. The employee's continued employment shall not
constitute consent to, or a waiver of rights with respect to, any act or failure
to act constituting Good Reason hereunder. (8) "Notice of Termination" shall
mean, unless otherwise defined in an employee's individual severance agreement
with CMC or, with respect to an employee who is a participant in CMC's Special
Severance Plan, in such Special Severance Plan (in which case said definition
shall govern), a written notice which shall indicate the specific termination
provision in this Section 6 relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination of the
employee's employment under the provision so indicated. A Notice of Termination
for Cause is required to include a statement signed by the Corporate Human
Resources Executive of CMC that, in the good
page 12
faith opinion of the Corporate Human Resources Executive, the employee engaged
in conduct set forth in Section 6(e)(2)(i) or 6(e)(2)(ii) (the definition of
Cause), and specifying the particulars thereof in detail. (9) "Person" shall
have the meaning given in Section 3(a)(9) of the Exchange Act, as modified and
used in Sections 13(d) and 14(d) thereof; provided, however, a Person shall not
include (i) CMC or any Subsidiary, (ii) a trustee or other fiduciary holding
securities under an employee benefit plan of CMC or a Subsidiary, (iii) an
underwriter temporarily holding securities pursuant to an offering of such
securities, or (iv) a corporation owned, directly or indirectly, by the
stockholders of CMC in substantially the same proportions as their ownership of
stock of CMC. (10) "Potential Change in Control" shall be deemed to have
occurred if any one of the following conditions shall have been satisfied: (i)
CMC enters into an agreement, the consummation of which would result in the
occurrence of a Change in Control; (ii) CMC or any Person publicly announces an
intention to take or to consider taking actions which, if consummated, would
constitute a Change in Control; (iii) any Person who is or becomes the
Beneficial Owner, directly or indirectly, of securities of CMC representing 15
percent or more of the combined voting power of CMC's then outstanding
securities, increases such Person's beneficial ownership of such securities by 5
percentage points or more over the percentage so owned by such Person on July
18, 1990; or (iv) the Board of Directors adopts a resolution to the effect that,
for purposes of the Plan, a Potential Change in Control has occurred.
7. WITHHOLDING FOR TAXES Any cash payment under the Plan shall be reduced by any
amounts required to be withheld or paid with respect thereto under all present
or future federal, state and local tax and other laws and regulations which may
be in effect as of the date of each such payment. Any distribution of shares of
Common Stock under the Plan shall not be made until appropriate arrangements
have been made for the payment of any amounts which may be required to be
withheld or paid with respect thereto, including, but not limited to,
withholding the distribution of a portion of the shares of Common Stock
otherwise issuable or the tendering of such shares back to CMC (under such rules
and conditions as may be established by the Committee) in order to satisfy all
or a portion of the required withholdings or payments.
8. DESIGNATION OF BENEFICIARY Each employee to whom an award or awards of
Restricted Stock Units has been made under this Plan may designate a beneficiary
or beneficiaries (which beneficiary may be an entity other than a natural
person) to receive any payment which under the terms of such award or awards may
become payable on or after the employee's death. At any time, and from time to
time, any such designation may be changed or canceled by the employee without
the consent of any such beneficiary. Any such designation, change or
cancellation must be on a form provided for that purpose by the Committee and
shall not be effective until received by the Committee. If no beneficiary has
been named by a deceased employee, or the designated beneficiaries have
predeceased the employee, the beneficiary shall be the employee's estate. If an
employee designates more than one beneficiary, any payments under this Plan to
such beneficiaries shall be made in equal shares unless the employee has
designated otherwise, in which case the payments shall be made in the
page 13
shares designated by the employee.
9. AMENDMENT AND TERMINATION The Committee may from time to time and at any time
alter, amend, suspend, discontinue or terminate this Plan and any awards granted
hereunder; provided, however, that no such action of the Committee may, without
the approval of the shareholders of CMC, alter the provisions of the Plan so as
to (i) increase the maximum number of shares of Common Stock which may be made
the subject of awards in any calendar year (except as provided in Section 3(b))
or increase the maximum number of shares of Common Stock as to which awards of
Options and Stock Appreciation Rights may be made to any awardee in any calendar
year (except as provided in Section 4(b)(1)); (ii) change the class of employees
eligible to receive awards under the Plan; (iii) extend beyond ten years the
maximum term of Incentive Stock Options or related Stock Appreciation Rights
granted under the Plan or increase the aggregate number of shares of Common
Stock as to which Incentive Stock Options may be granted under the Plan (except
as provided in Section 4(b)(2)); (iv) permit the option price of any Option
Share to be less the Market Value Per Share on the date of the granting of the
Option; (v) withdraw the administration of the Plan from the Committee; or (vi)
permit any member of the Committee to be eligible to receive an award pursuant
to the terms of the Plan. No alteration, amendment, suspension, discontinuance
or termination of any individual award (as opposed to any such action with
respect to this Plan) shall, however, materially adversely affect the rights of
any awardee without the written consent of the awardee. Notwithstanding the
proviso to the first sentence of this Section 9 or the provisions of the second
sentence of this Section 9, the Committee may alter, 73 20 amend, suspend,
discontinue or terminate this Plan and any awards granted hereunder without the
approval of the shareholders of CMC or any awardee under the Plan if necessary
in order to enable the Plan or any award hereunder, or any other plan of CMC or
any Subsidiary intended to be so qualified or any award thereunder, to qualify
for (x) the exemption provided by Rule 16b-3, (y) the benefits provided under
Section 422 of the Code, or (z) the exclusion for qualified performance-based
compensation under Section 162(m) of the Code and the Section 162(m)
Regulations.
10. PREEMPTION BY APPLICABLE LAWS AND REGULATIONS Anything in the Plan or any
Stock Option Agreement or other agreement entered into pursuant to the Plan to
the contrary notwithstanding, if, at any time specified herein or therein for
the making of any determination, the issue or other distribution of shares of
Common Stock, or the payment of consideration to an employee as a result of the
exercise of any Stock Appreciation Right, as the
page 14
case may be, any law, regulation or requirement of any governmental authority
having jurisdiction in the premises shall require either CMC or the employee (or
the employee's beneficiary thereof), as the case may be, to take any action in
connection with any such determination, the shares then to be issued or
distributed, or such payment, the issue or distribution of such shares or the
making of such determination or payment, as the case may be, shall be deferred
until such action shall have been taken.
11. MISCELLANEOUS
a. NO EMPLOYMENT CONTRACT. Nothing contained in the Plan or any Stock Option
Agreement or other agreement shall be construed as conferring upon an employee
the right to continue in the employ of CMC or any Subsidiary.
b. EMPLOYMENT WITH SUBSIDIARIES. Employment by CMC for the purposes of this Plan
shall be deemed to include employment by, and to continue during any period in
which an employee is in the employment of, any Subsidiary.
c. NO RIGHTS AS A STOCKHOLDER. An employee shall have no rights as a stockholder
with respect to Option Shares covered by the employee's Options or Stock
Appreciation Rights until the date of the issuance of such shares to the
employee and only after such shares are fully paid. No adjustment will be made
for dividends or other distributions or rights for which the record date is
prior to the date of such issuance. An employee shall have no rights as a
stockholder with respect to any award of Restricted Stock Units under the Plan.
d. NO RIGHT TO CORPORATE ASSETS. Nothing contained in the Plan shall be
construed as giving an employee, the employee's beneficiaries or any other
person any equity or interest of any kind in any assets of CMC or a Subsidiary
or creating a trust of any kind or a fiduciary relationship of any kind between
CMC or a Subsidiary and any such person.
e. NO RESTRICTION ON CORPORATE ACTION. Nothing contained in the Plan shall be
construed to prevent CMC or any Subsidiary from taking any corporate action
which is deemed by CMC or such Subsidiary to be appropriate or in its best
interest, whether or not such action would have an adverse effect on the Plan or
any award made under the Plan. No employee, beneficiary or other person shall
have any claim against CMC or any Subsidiary as a result of any such action.
f. NON-ASSIGNABILITY. Neither an employee nor an employee's beneficiary shall
have the power or right to sell, exchange, pledge, transfer, assign, hypothecate
or otherwise encumber or dispose of such employee's or beneficiary's interest in
the Plan or in any award received under the Plan, other than by will or the laws
of descent and distribution; nor shall such interest be subject to seizure for
the payment of an employee's or beneficiary's debts, judgments, alimony, or
separate maintenance or be transferable by operation of law in the event of an
employee's or beneficiary's bankruptcy or insolvency. Any Option or Stock
Appreciation Right granted under the
page 15
Plan shall be exercisable during an awardee's lifetime only by such awardee or
his or her guardian or legal representative. CMC's or a Subsidiary's obligations
under the Plan are not assignable or transferable except to a corporation which
acquires all or substantially all of the assets of CMC or such Subsidiary or to
any corporation into which CMC or such Subsidiary may be merged or consolidated.
g. OTHER BENEFIT PLANS. No awards or payments under the Plan shall be taken into
account in determining any benefits under any retirement, profit-sharing or
other plan maintained by CMC or a Subsidiary.
h. GOVERNING LAW; CONSTRUCTION. All rights and obligations under the Plan shall
be governed by, and the Plan shall be construed in accordance with, the laws of
the State of New York. Titles and headings to Sections herein are for purposes
of reference only, and shall in no way limit, define or otherwise affect the
meaning or interpretation of any provisions of the Plan.
i. EFFECTIVE DATE. The Plan shall be effective May 1, 1994, subject to the
approval of the Plan by the stockholders of CMC in accordance with Rule 16b-3
and Sections 162(m) and 422 of the Code.
page 16
Exhibit 10.5(b)
THE CHASE MANHATTAN CORPORATION
1994 LONG-TERM INCENTIVE PLAN
INSTRUMENT OF AMENDMENT
WHEREAS, The Chase Manhattan Corporation has reserved the right to
amend The Chase Manhattan 1994 Long-Term Incentive Plan (the "Plan");
WHEREAS, the Compensation Committee of the Board of Directors of The
Chase Manhattan Corporation has the authority to amend the Plan and desires to
amend the Plan as set forth in this Instrument of Amendment;
NOW, THEREFORE, the Plan is hereby amended as follows:
1. Section 6(a) of the Plan is amended as follows:
(a) The phrase "Except as provided in clause (3) below," shall be added
to the beginning of each of clauses (1) and (2) of Section 6(a).
(b) The following new clause (3) shall be added to the end of Section
6(a):
(3) If an optionee's employment is terminated after the
occurrence of an Approved Change in Control (as defined in Section
6(e)(iii) below), unless such termination is (i) for "Cause" (as
defined in Section 6(e) below), or (ii) by the optionee without Good
Reason (as defined in Section 6(e) below but excluding for this purpose
subsection (i) thereof), the optionee's outstanding Options and Stock
Appreciation Rights shall become immediately exercisable and the
optionee shall have the right, subject to the provisions of Section
4(d)(5) above, to exercise such Options and Stock Appreciation Rights,
at any time within the twenty-four month period after such termination
of employment. After the occurrence of an Approved Change in Control,
any purported termination of an employee's employment (other than by
reason of death) shall be communicated by a Notice of Termination (as
defined in Section 6(e) below) from CMC to the employee or from the
employee to CMC, as the case may be.
2. Section 6(b) of the Plan is amended as follows:
(a) The following phrase shall be inserted immediately after the first
use of the phrase "Change in Control" in Section (b):
2
or a termination of employment under circumstances described in Section
6(a)(3) above that would entitle such employee to exercise immediately
any outstanding Options awarded to such employee
(b) The phrase "or such termination" shall be inserted immediately
after the second, third and fourth uses of the phrase "Change in Control" in
Section 6(b).
3. Section 6(c) is amended by adding the following new sentences at the end
thereof:
For purposes of this Section 6(c), the definition of "Change in
Control" shall be that set forth in Section 6(e) below except that the
third sentence of Section 6(e)(3) shall be ignored. The definition of
"Good Reason" applicable to any Potential Change in Control relating to
any Approved Change in Control shall, for purposes of this Section
6(c), exclude subsection (i) of the definition of "Good Reason" set
forth in Section 6(e)(7) hereof.
4. Section 6(d) is amended by adding the following new sentence the end thereof:
For purposes of this Section 6(d), the definition of "Change in
Control" shall be that set forth in Section 6(e) below except that the
third sentence of Section 6(e)(3) shall be ignored.
5. Section 6(e)(3) of the Plan is amended by inserting at the end thereof the
following:
For purposes of this Plan, any Approved Change in Control shall not
constitute a Change in Control. As used herein, the term "Approved
Change in Control" means any Change in Control occurring by reason of
or upon the occurrence of the transactions and events contemplated by
the Merger Agreement. "Merger Agreement" means any agreement or plan of
merger or consolidation between CMC and Chemical Banking Corporation
that is approved by the Boards of Directors of CMC and Chemical Banking
Corporation on or before September 30, 1995, as modified from time to
time.
3
6. This Instrument of Amendment shall be effective as of August 25, 1995.
IN WITNESS WHEREOF, The Chase Manhattan Corporation has executed this
Instrument of Amendment as of August 25, 1995.
THE CHASE MANHATTAN CORPORATION
By: /s/ JOHN J. FARRELL
----------------------------
John J. Farrell
Executive Vice President
|
EXHIBIT 10.6
CHEMICAL BANKING CORPORATION
LONG-TERM INCENTIVE PLAN
(As amended and restated effective as of May 19, 1992)
1. PURPOSE The purposes of the Chemical Banking Corporation Long-Term
Stock Incentive Plan (the "Plan") are to encourage selected key employees of the
Company to acquire a proprietary and vested interest in the growth and
performance of the company, to generate an increased incentive to contribute to
the Company's future success and prosperity, thus enhancing the value of the
Company for the benefit of stockholders, and to enhance the Company's ability to
attract and retain individuals of exceptional managerial talent upon whom, in
large measure, the sustained progress, growth and profitability of the Company
depends.
The purposes of the Plan are to be achieved through the grant of various
types of stock-based awards.
2. DEFINITIONS For purposes of the Plan, the following terms shall have
the meanings set forth in the Section 2:
"Award" shall mean any type of stock-based award granted pursuant to the
Plan.
"Board" shall mean the Board of Directors of CBC; provided that any action
|
taken by a duly authorized committee of the Board within the scope of authority
delegated to such committee by the Board shall be considered an action of the
Board for purposes of this plan.
"CBC" shall mean Chemical Banking Corporation, and, except as otherwise
specified in this Plan in a particular context, any successor thereto, whether
by merger, consolidation, purchase of substantially all its assets or otherwise.
"Code" shall mean the Internal Revenue Code of 1986, as from time to time
amended.
"Committee" shall mean the Compensation and Benefits Committee of the
Board or any subcommittee thereof composed of not less than two directors, each
of whom is a "disinterested person" as defined in Rule 16 b-3 promulgated by the
Securities and Exchange Commission under the Securities Exchange Act of 1934, or
any successor definition adopted by the Commission.
"Common Stock" shall mean the common stock of CBC, $1 par value.
"Company" shall mean CBC and its Subsidiaries.
"Employee" shall mean any salaried employee of the Company.
"Executive Officer" shall mean a Participant who is subject to the
requirements of Sections 16(a) and 16(b) of the Securities Exchange Act of 1934.
"Fair Market Value" shall mean, per share of Common Stock, the average of
high and low sale prices of the Common Stock as reported on the New York Stock
Exchange (the "NYSE") composite tape on the applicable date, or, if there are no
such sale prices of Common Stock reported on the NYSE composite tape on such
date, then the average price of the Common Stock on the last previous day on
which high and low sale prices are reported on the NYSE composite tape.
"Other Stock-Based Award" shall mean any of those Awards described in
Section 8 hereof.
"Participant" shall mean an Employee who is selected by the Committee to
receive an Award under the Plan.
"Retirement" shall mean normal or early retirement under the terms of a
retirement plan of CBC or a Subsidiary or voluntary termination of employment;
provided, however, that in either case, CBC must have given its prior consent to
treat the individual's termination of employment as a retirement.
"Subsidiary" shall mean any corporation which at the time qualifies as a
subsidiary of CBC under the definition of "subsidiary corporation" in Section
424(f) of the code, as amended from time to time.
"Total Disability" shall mean a physical or mental incapacity, which would
entitle the individual to benefits under the long term disability program
sponsored by the Subsidiary employing such individual; provided that if an
individual has not elected coverage under the applicable program, Committee
shall determine utilizing the criteria of such program whether the individual
has incurred a Total Disability.
3. Shares Subject to the Plan. (a) Shares of Common Stock which may be issued
under the plan may be either authorized and unissued shares of Common Stock or
authorized and issued shares of Common Stock held in CBC's Treasury. Subject to
adjustment as provided in Section 14, the number of shares of Common Stock with
respect to which Awards (whether distributable in shares of Common Stock or in
cash) may be granted under the Plan in any calendar year shall be 1.5 percent of
the total shares of Common Stock outstanding on the last day of the preceding
calendar year (including treasury shares); provided, that no more than a total
of 15 million shares of Common Stock during the term of the Plan may be subject
to incentive stock options; provided, further that grants excluded from the
definition of derivative security by Rule 16a-1(c)(3)(ii) promulgated under the
Securities Exchange Act of 1934, shall not be subject to the limit placed on the
total shares of Common Stock with respect to which Awards may be granted
hereunder.
2
(b) Notwithstanding Section 3(a), to the extent that the number of shares
of Common Stock with respect to which Awards may be granted under the Plan in
any calendar year exceeds the number of shares of Common Stock with respect to
which Awards were granted under the Plan during that calendar year, such excess
shall be available for grant under the Plan in succeeding calendar years.
(c) In the event that (i) a stock option expires or is terminated
unexercised as to any shares of Common Stock covered thereby (except with
respect to a stock option which terminates on the exercise of a stock
appreciation right) or (ii) any other Award is forfeited for any reason under
the Plan, any Common Stock allocated in connection such Award, shall thereafter
again be available for grant pursuant to the Plan.
4. Eligibility. All Employees who have demonstrated significant management
potential or who have contributed in a substantial measure to the successful
performance of the Company, as determined by the Committee, are eligible to be
Participants in the Plan.
5. Administration. The Plan shall be administered by the Committee. The
Committee may operate through subcommittees established by it, consisting of not
fewer than two members of the Committee. As to the selection of, and Awards to,
Participants who are not Executive Officers, the Committee may delegate any or
all of its responsibilities to officers or employees of the Company.
Subject to the provisions of the Plan, the Committee shall be authorized
to interpret the Plan, to establish, amend, and rescind any rules and
regulations relating to the Plan, to determine the terms and provisions of any
agreements entered into hereunder, and to make all other determinations
necessary or advisable for the administration of the Plan.. The Committee may
correct any defect, supply any omission or reconcile any inconsistency in the
Plan or in any Award in the manner and to the extent it shall deem desirable to
carry the Plan or any such Award into effect. The determinations of the
Committee in the administration of the Plan, as described herein, shall be final
and conclusive.
The validity, construction and effect of the Plan and any rules and
regulations relating to the Plan shall be determined in accordance with the laws
of the State of New York and applicable Federal law.
6. Stock Options. Any stock options granted under the Plan shall be in
such form as the Committee may from time to time approve and shall be subject to
the terms and conditions provided herein and such additional terms and
conditions not inconsistent with the terms of the Plan, as the Committee shall
deem desirable.
Stock options may be granted to any Participant. In the case of incentive
stock options, the terms and conditions of such grants shall be subject to and
comply with such requirements as may be prescribed by Section 422 (b) of the
Code, as from time to time amended, and any implementing regulations, including,
but not limited to, the
3
requirement that such stock options are exercisable during the Participant's
lifetime, only by such Participant. The Committee shall establish the option
price at the time each stock option is granted, which price in the case of an
incentive stock option or a non-qualified stock option shall not be less than
100% of the Fair Market Value of the Common Stock on the date of grant, except
the option price of a nonqualified stock option awarded in connection with or as
a part of Other Stock-based Awards shall not be less than 50% of the Fair Market
Value of the Common Stock on the date of grant.
Stock options may not be exercisable later than 10 years after their date
of grant, except that the termination provisions of a nonqualified stock option
may provide for exercise after termination beyond 10 years. The option price of
each share of Common Stock as to which a stock option is exercised shall be paid
in full at the time of such exercise. Such payment may be made at the sole
discretion of the Committee, pursuant to and in accordance with criteria and
guidelines established by the Committee (which criteria and guidelines may be
different for Executive Officers and for other Participants), as the same may be
modified from time to time, (i) in cash, (ii) by tender of shares of Common
Stock already owned by the Participant, valued at Fair Market Value as of the
date of exercise, (iii) if authorized by the Committee, by withholding pursuant
to the election of the Participant, which election is subject to the disapproval
of the Committee, from those shares that would otherwise be obtained upon
exercise of the option a number of shares having a Fair Market Value equal to
the option price, (iv) if authorized by the Committee, and in combination with
services rendered by the exercising Participant, by delivery of a properly
executed exercise notice together with irrevocable instructions to a securities
broker (or, in the case of pledges, lender) approved by the Company to, (a) sell
shares of Common Stock subject to the option and to deliver promptly to the
Company a portion of the proceeds of such sale transaction on behalf of the
exercising Participant to pay the option price, or (b) pledge shares of Common
Stock subject to the option to a margin account maintained with a broker or
lender, as security for a loan, and such broker or lender, pursuant to
irrevocable instructions, delivers to the Company the loan proceeds, at the time
of exercise to pay the option price, or (v) by any combination of (i), (ii),
(iii) or (iv) above.
7. Stock Appreciation Rights. Stock appreciation rights may be granted
independent of any stock option or in conjunction with all or any part of any
stock option granted under the Plan, either at the same time as the stock option
is granted or at any later time during the term of the option. Stock
appreciation rights shall be subject to such terms and conditions as determined
by the Committee, not inconsistent with the provisions of the Plan.
No stock appreciation right shall be exercisable earlier than six months
after grant, except in the event of the death or Total Disability of the
Participant prior to the expiration of such six-month period. Upon exercise, a
stock appreciation right shall entitle the Participant to receive from CBC an
amount equal to the positive difference between the Fair Market Value of a share
of Common Stock on the exercise of the stock appreciation right and the per
share grant or option price, as applicable (or some lesser amount as the
Committee may determine at the time of grant) multiplied by the number
4
of shares of Common Stock with respect to which the stock appreciation right is
exercised. A stock appreciation right or applicable portion thereof shall
terminate and no longer be exercisable upon the termination or exercise of any
related stock option, except that a stock appreciation right granted with
respect to less than the full number of shares covered by a related stock option
shall not be reduced until the exercise or termination of the related stock
option exceeds the number of shares not covered by the stock appreciation right.
The Committee shall determine whether the stock appreciation right shall be
settled in cash, Common Stock or a combination of cash and Common Stock.
8. Other Stock-Based Awards. Other Awards of Common Stock and Awards that
are valued in whole or in part by reference to, or otherwise based on the Fair
Market Value of Common Stock (all such Awards being referred to herein as "Other
Stock-based Awards"), may be granted under the Plan in the discretion of the
Committee. Other Stock-based Awards shall be in such form as the Committee shall
determine, including without limitation, (i) the right to purchase shares of
Common Stock, (ii) shares of Common Stock subject to restrictions on transfer
until the completion of a specified period of service, the occurrence of an
event or the attainment of performance objectives, each as specified by the
Committee, and (iii) shares of Common Stock issuable upon the completion of a
specified period of service, the occurrence of an event or the attainment of
performance objectives, each as specified by the Committee. Other Stock-based
Awards may be granted alone or in addition to any other Awards made under the
Plan. Subject to the provisions of the Plan, the Committee shall have sole and
absolute discretion to determine to whom and when such Other Stock based Awards
will be made, the number of shares of Common Stock to be awarded under (or
otherwise related to) such Other Stock-based Awards and all other terms and
conditions of such Awards. The Committee shall determine whether Other
Stock-based Awards shall be settled in cash, Common Stock or a combination of
cash and Common Stock.
9. Dividends, Equivalents and Voting Rights. Awards, other than stock
options, may provide the Participant with dividends or dividend equivalents and
voting rights prior to either vesting or earnout.
10. Award Agreements. Each Award under the Plan shall be evidenced by an
agreement setting forth the terms and conditions, not inconsistent with the
provisions of the Plan, as determined by the Committee, which shall apply to
such Award.
11. Withholding. The Company shall have the right to deduct from all
amounts paid to any Participant in cash (whether under this Plan or otherwise)
any taxes required by law to be withheld therefrom. In the case of payments of
Awards in the form of Common Stock, at the Committee's discretion the
Participant may be required to pay to the Company the amount of any taxes
required to be withheld with respect to such Common Stock, or, in lieu thereof,
the Company shall have the right to retain the number of shares of Common Stock
the Fair Market Value of which equals the amount required to be withheld.
Without limiting the foregoing, the Committee may, in its discretion and subject
to such conditions as it shall impose, permit share withholding to be done at
the Participant's election.
5
12. Nontransferability. No Award shall be assignable or transferable, and-
no right or interest of any Participant in any Award shall be subject to any
lien, obligation or liability of the Participant, except by will, the laws of
descent and distribution, or as otherwise set forth in the Award agreement.
13. No Right to Employment or Continued Participation in Plan. No person
shall have any claim or right to the grant of an Award, and the grant of an
Award shall not be construed as giving a Participant the right to be retained in
the employ of the Company or to be eligible for any subsequent Awards. Further,
the Company expressly reserves the right at any time to dismiss a Participant
free from any liability, or any claim under the Plan, except as provided herein
or in any agreement entered into hereunder.
14. Adjustment of and Changes in Common Stock. in the event of any change
in the outstanding shares of Common Stock by reason of any Common Stock dividend
or split, recapitalization, merger, consolidation, spin-off, combination or
exchange of shares or other corporate exchange, or any distributions to
shareholders of Common Stock other than regular cash dividends, the Committee
may make such substitution or adjustment, if any, as it deems to be equitable,
as to the number or kind of shares of Common Stock or other securities issued or
reserved for issuance pursuant to the Plan, and to outstanding Awards.
15. Amendment. The Board may amend, suspend or terminate the Plan or any
portion hereof at any time, provided that no amendment shall be made without
stockholder approval which shall (i) increase (except as provided in Section 14
hereof) the total number of shares or the percentage of shares reserved for
issuance pursuant to the Plan; (ii) change the class of Employee eligible to be
Participants; (iii) decrease the minimum option price stated in Section 6 hereof
(other than to change the manner of determining Fair Market Value to conform to
any then applicable provision of the Code and regulations thereunder); or (iv)
extend the date after which Awards cannot be granted under the Plan.
16. Unfunded Status of Plan. The Plan is intended to constitute an
"unfunded" plan for long-term incentive compensation. With respect to any
payments not yet made to a Participant, including any Participant optionee, by
CBC, nothing herein contained shall give any Participant any rights that are
greater than those of a general creditor of CBC. In its sole discretion, the
Committee may authorize the creation of trusts or other arrangements to meet the
obligations created under the Plan to deliver Common Stock or payments in lieu
thereof or with respect to options, stock appreciation rights and other Awards
under the Plan; provided, however, that the existence of such trusts or other
arrangements is consistent with the unfunded status of the Plan.
17. Effective Date. Subject to shareholder approval of Sections 3 and 17
hereof, this Amended and Restated Plan shall be effective on May 19, 1992. No
Awards may be granted under the Plan after May 19, 1997.
6
Exhibit 10.9
STOCK OPTION AWARD FOR DENNIS WEATHERSTONE
J.P. MORGAN & CO. INCORPORATED
STOCK OPTION AWARD
1. J.P. Morgan & Co. Incorporated (the "Company") on January 16, 1995 has
granted and hereby evidences the grant to Dennis Weatherstone (the "Optionee"),
subject to the terms and conditions set forth herein, a non-qualified stock
option (the "Option") to purchase from the Company 150,000 shares of Common
Stock of the Company at a per share price of $60.50. Fifty percent of the Option
shall be exercisable beginning January 16, 1996 and one hundred percent of the
Option shall be exercisable beginning January 16, 1997. Upon exercise of the
Option, in whole or in part, the Company shall cause a certificate for shares of
Common Stock to be issued to the Optionee.
2. Subject to the terms and conditions hereof, the Option shall be
exercisable at the times set forth in paragraph 1. Shares may be purchased until
the Option shall expire or be canceled or surrendered, by giving the Company
written notice of exercise specifying the number of shares to be purchased,
which number may not be less than five shares. The notice of exercise shall be
accompanied by tender to the Company of the full purchase price of said shares
and the related amount of income taxes required to be withheld by the Company,
if applicable. Payment of the purchase price of said shares shall be made in
cash, shares of Common Stock, a combination of cash and such shares, or any
additional method of payment acceptable to the Company's Committee on Management
Development and Executive Compensation or any successor thereto (the
"Committee"). The preceding sentence notwithstanding, the Committee may, in its
sole discretion, prohibit or limit the use of shares of Common Stock as part or
full payment of the purchase price. Any such shares delivered as part or full
payment of the purchase price shall be valued on the date of exercise at their
fair market value determined in accordance with procedures established by the
Committee.
3. Without limiting the generality of paragraph 1 or 2 hereof, the Option is
subject to the following conditions:
(a) the Option shall not in any event be exercisable after the close of
business on January 14, 2005;
(b) the Option shall not be transferred except by will or the laws of
descent and distribution or, during the lifetime of the Optionee, to one or more
members of the Optionee's immediate family, to a partnership of which the only
partners are members of the Optionee's immediate family, or to a trust
established by the Optionee for the benefit of one or more members of the
Optionee's immediate family ("immediate family" meaning the Optionee's spouse,
parents, children, grandchildren and the spouses of such parents, children and
grandchildren);
(c) upon the death of the Optionee prior to January 15, 2005, the person
or persons to whom the Optionee's
Page 1
rights under the Option are transferred in accordance with subparagraph (b)
hereof, may, on or prior to January 14, 2005, purchase any or all of the shares
remaining subject to the Option at the time of such death at or after the time
the Optionee would have been entitled to purchase such shares had the Optionee
survived;
(d) upon a "Change in Control" (which term shall have the same definition
as that in Section 9.1 of the 1992 Stock Incentive Plan of J.P. Morgan & Co.
Incorporated and Affiliated Companies), the Option shall, unless the Committee
determines otherwise, immediately become exercisable in full; and
(e) prior to the occurrence of a Change in Control, but not thereafter,
the Committee may, in its sole discretion and with or without cause, cancel the
Option in whole or in part to the extent it has not theretofore been exercised.
4. In the event the Committee shall determine that any stock dividend,
extraordinary cash dividend, recapitalization, reorganization, merger,
consolidation, split-up, spin-off, combination, exchange of shares, warrants or
rights offering to purchase Common Stock at a price substantially below fair
market value, or other similar corporate event has affected the Common Stock of
the Company, such adjustment may be made in the number and option price of the
shares subject to the Option as may be determined to be appropriate by the
Committee in its sole discretion.
5. Any notice given hereunder to the Company shall be addressed to the
Company in the manner specified in the notice of exercise provided by the
Committee, and any notice given hereunder to the Optionee shall be addressed to
him at his address as shown on the records of the Company.
6. The Optionee shall be bound by the terms and conditions hereof.
-----END PRIVACY-ENHANCED MESSAGE-----
Page 2
Exhibit 10.10
As amended
December 14, 1994
1992 Stock Incentive Plan
of
J. P. Morgan & Co. Incorporated and
Affiliated Companies
ARTICLE I
PURPOSE
The purpose of the 1992 Stock Incentive Plan (the "Plan") is to promote
the success of J. P. Morgan & Co. Incorporated (the "Company") by providing a
method whereby eligible employees of the Company and its affiliated companies
may be awarded additional remuneration for services rendered and encouraged to
invest in the Common Stock of the Company, thereby increasing their proprietary
interest in the Company's business, encouraging them to remain in the employ of
the Company or its affiliated companies, and increasing their personal interest
in the continued success and progress of the Company.
ARTICLE II
DEFINITIONS
2.1. The following terms shall have the meaning described below when used
in the Plan:
(a) "Award" shall refer to a Restricted Stock Award granted under Article
VII or a Stock Unit Award granted under Article VIII.
(b) "Board of Directors" shall mean the Board of Directors of the Company.
(c) "Code" shall mean the Internal Revenue Code of 1986, as it may be
amended from time to time.
(d) "Committee" shall mean the committee appointed by the Board of
Directors to administer the Plan pursuant to Article III except that with
respect to the determinations to be made under Sections 6.1, 6.5, 6.8, 7.1,
page 1
7.2(c), 7.4, 8.1, 8.2, 9.1 and 9.6 with respect to an eligible employee who is a
member of the Board of Directors, Committee shall mean all directors of the
Company who are not employees of the Company or any other Participating Company
and who are disinterested within the meaning of Rule 16b-3 under the Exchange
Act and are outside directors under Section 162(m)(4)(C) of the Code.
(e) "Common Stock" shall mean common stock, par value $2.50, of the
Company.
(f) "Company" shall mean J. P. Morgan & Co. Incorporated or any successor
to it in ownership of all or substantially all of its assets.
(g) "Earlier Plans" shall mean the Company's 1989 Stock Incentive Plan,
1987 Stock Incentive Plan, Stock Option Plan (1984) and Stock Option Plan
(1984).
(h) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
(i) "Incentive Stock Option" shall mean a stock option granted under
Article VI which is intended to meet the requirements of Section 422 of the
Code.
(j) "Nonqualified Stock Option" shall mean a stock option granted under
Article VI which is not intended to be an Incentive Stock Option.
(k) "Option" shall mean an Incentive Stock Option or a Nonqualified Stock
Option, including for purposes of Section 6.5 any stock option granted under the
Earlier Plans.
(l) "Participant" shall mean an eligible employee who has been granted a
Restricted Stock Award.
(m) "Participating Company" shall mean the Company, the Trust Company or
any subsidiary or other affiliated entity (whether or not incorporated).
(n) "Restricted Stock Award" shall mean an award of share credits under
Article VII hereof.
(o) "Stock Appreciation Right" shall mean a right granted under Section
6.5.
(p) "Stock Unit Award" shall mean an award granted under Article VIII.
(q) "Trust Company" shall mean Morgan Guaranty Trust Company of New York
or any successor to it in ownership of all or substantially all of its assets.
(r) "Vesting Date" shall mean the fifth anniversary of the date a
Restricted Stock Award was granted or such other time or times the Committee
shall designate in respect of a Restricted Stock Award at the time of the grant
of such Award. If more than one Vesting Date is designated for an Award,
reference in the Plan to Vesting Date in respect of such Award shall be deemed
to refer to each part of such Award and the Vesting Date for such part.
page 2
ARTICLE III
ADMINISTRATION
3.1. (a) The Board of Directors of the Company shall appoint not less than
three Directors to the Committee which shall administer the Plan. No individual
shall become a member of the Committee unless such individual is disinterested
within the meaning of Rule 16b-3 under the Exchange Act. The Committee shall
have full power and authority, subject to such orders or resolutions not
inconsistent with the provisions of the Plan as may from time to time be issued
or adopted by the Board of Directors, to grant to eligible persons Options and
Stock Appreciation Rights under Article VI of the Plan, to grant Restricted
Stock Awards under Article VII of the Plan, to grant Stock Unit Awards under
Article VIII of the Plan, to interpret the provisions of the Plan and any
agreements relating to Options or Awards granted under the Plan, to supervise
the administration of the Plan and to delegate to senior officers of the Company
or the Trust Company the power to act for the Committee as the Committee shall
specify.
(b) All decisions made by the Committee (or such persons acting under a
delegation by the Committee pursuant to Section 3.1(a)) pursuant to the
provisions of the Plan and related orders of the Board of Directors shall be
within the absolute discretion of the Committee or its delegate, as the case may
be, and shall be conclusive and binding on all persons, including the Company,
stockholders, employees and beneficiaries of employees.
ARTICLE IV
SHARES SUBJECT TO THE PLAN
4.1. (a) Subject to adjustment pursuant to Section 4.1(c), the maximum
number of shares of Common Stock with respect to which Options, Stock
Appreciation Rights and Awards may be granted shall be 14,000,000 shares of
Common Stock. Shares of Common Stock may be made available from the authorized
but unissued shares of the Company or from shares reacquired by the Company,
including shares purchased in the open market. If an Option, Restricted Stock
Award or Stock Unit Award granted under the Plan shall expire or terminate for
any reason other than the exercise of a Stock Appreciation Right, the shares
subject to such Option or Award shall be available for other Options and Awards
to the same employee or other employees.
(b) Subject to adjustment pursuant to Section 4.1(c), of the total shares
of Common Stock referred to in Section 4.1(a), the number of shares of Common
Stock with respect to which Awards may be granted shall not exceed 2,800,000
shares of Common Stock.
(c) In the event that the Committee shall determine that any stock
dividend, extraordinary cash dividend, recapitalization, reorganization, merger,
consolidation, split-up, spin-off, combination, exchange of
page 3
shares, warrants or rights offering to purchase Common Stock at a price
substantially below fair market value, or other similar corporate event affects
the Common Stock such that an adjustment is required in order to preserve the
benefits or potential benefits intended to be made available under this Plan,
then the Committee shall, in its sole discretion, and in such manner as the
Committee may deem equitable, adjust any or all of (1) the number and kind of
shares which thereafter may be awarded or optioned and sold or made the subject
of Stock Appreciation Rights under the Plan, (2) the number and kind of shares
subject to outstanding Options and Awards, and Stock Appreciation Rights, and
(3) the option price with respect to any of the foregoing and/or, if deemed
appropriate, make provision for a cash payment to a Participant or a person who
has an outstanding option provided, however, that the number of shares subject
to any Option or Award shall always be a whole number.
ARTICLE V
ELIGIBILITY
5.1. The employees eligible to participate in the Plan and receive
Options, Stock Appreciation Rights and Awards under the Plan shall consist of
key employees of the Company and other Participating Companies.
ARTICLE VI
STOCK OPTIONS
6.1. Subject to the limitations of the Plan, the Committee shall, after
such consultation with and consideration of the recommendations of management as
the Committee considers desirable, select from eligible employees those to be
granted Options and determine the time when each Option shall be granted and the
number of shares subject to each Option and shall select the optionees to
receive Stock Appreciation Rights and the Options to which such rights shall
relate. Options may be either Incentive Stock Options or Nonqualified Stock
Options and more than one Option may be granted to the same person.
6.2. Option Agreements. Each Option under the Plan shall be evidenced by
an option agreement which shall contain such provisions as may be approved by
the Committee. Any such option agreement may be supplemented and amended from
time to time as approved by the Committee provided that the terms of such option
agreement after being amended or supplemented conform to the terms of the Plan.
6.3. Option Price. The price at which shares may be purchased upon
exercise of a particular Option shall be not less than 100% of the fair market
value of such shares on the date such Option is granted, as determined in
accordance with procedures to be established by the Committee.
6.4. Exercise of Options. (a) Subject to the provisions of the Plan with
respect to death, retirement and termination of employment, the period during
which each
page 4
Option may be exercised shall be fixed by the Committee at the time such Option
is granted, but such period in no event shall expire later than ten years from
the date the Option is granted.
(b) Except as permitted by Sections 6.7 and 9.1, each Option may be
exercised only after one year of continued employment by the Company or any of
its affiliated companies and only during the continuance of the optionee's
employment with the Company or any of its affiliated companies. Subject to the
foregoing limitations and the terms and conditions of the option agreement and
unless cancelled prior to exercise, each Option shall be exercisable in whole or
in part in installments at such time or times as the Committee may prescribe and
specify in the applicable option agreement.
(c) No shares shall be delivered pursuant to any exercise of an Option
until payment in full of the option price therefor is received by the Company.
Such payment shall be made in cash or, unless prohibited by the Committee,
through the delivery of shares of Common Stock of the Company with a value equal
to the total option price or a combination of cash and shares. In addition, the
Committee may prescribe additional methods of payment to the extent permitted by
applicable law. Any shares so delivered shall be valued at their fair market
value on the exercise date determined as provided in Section 6.3. No optionee or
legal representative, legatee or distributee of any optionee shall be deemed to
be a holder of any shares subject to any Option prior to the issuance of such
shares upon exercise of such Option or any related Stock Appreciation Right.
6.5. Stock Appreciation Rights. (a) Stock Appreciation Rights may be
granted to such optionees holding Options granted under the Plan or the Earlier
Plans as the Committee may select and upon such terms and conditions as the
Committee may prescribe. Each Stock Appreciation Right shall relate to a
specific Option granted and may be granted concurrently with the Option to which
it relates or at any time prior to the exercise, expiration or termination of
such Option. A Stock Appreciation Right shall entitle the optionee, subject to
the provisions of the Plan and the related option agreement, to receive from the
Company an amount not more than the excess of the fair market value on the
exercise date of the number of shares for which the Stock Appreciation Right is
exercised over the option price for such shares under the related Option. For
this purpose, such fair market value shall be determined as provided in Section
6.3.
(b) A Stock Appreciation Right shall be exercisable on such dates or
during such periods as may be determined by the Committee from time to time,
provided that the Committee may, for administrative convenience, determine that,
for any Stock Appreciation Right relating to a Nonqualified Stock Option which
right can only be exercised during a limited period of time in order to satisfy
rules imposed by the Securities and Exchange Commission, the exercise of any
such right for cash during such limited period shall be deemed to occur for all
purposes hereunder on the day during such limited period on which the fair
market value of the Common Stock, determined as provided in
page 5
Section 6.3, is the highest, and provided, further, that no Stock Appreciation
Right shall be exercisable at a time when the related Option could not be
exercised nor may it be exercised with respect to a number of shares in excess
of the number for which such Option could then be exercised. Any such
determination by the Committee may be changed by the Committee from time to time
and may govern the exercise of Stock Appreciation Rights granted prior to such
determination as well as Stock Appreciation Rights thereafter granted.
(c) A Stock Appreciation Right may be exercised only upon surrender of the
related Option by the optionee, which shall be terminated to the extent of the
number of shares for which the Stock Appreciation Right is exercised. Shares
covered by such a terminated Option or portion thereof granted under the Plan
shall not be available for other Options or Awards under the Plan.
(d) The amount payable by the Company upon exercise of a Stock
Appreciation Right may be paid in cash, in shares (valued at their fair market
value on the exercise date determined as provided in Section 6.3) or in any
combination thereof as the Committee shall determine from time to time. No
fractional shares shall be issued and the optionee shall receive cash in lieu
thereof.
(e) The Committee may impose any other conditions upon the exercise of a
Stock Appreciation Right, which conditions may include a condition that the
Stock Appreciation Right may be exercised only in accordance with rules and
regulations adopted by the Committee from time to time. Such rules and
regulations may govern the right to exercise Stock Appreciation Rights granted
prior to the adoption or amendment of such rules and regulations as well as
Stock Appreciation Rights granted thereafter.
(f) The Committee may at any time amend or suspend any Stock Appreciation
Right theretofore granted under the Plan, provided that the terms of any Stock
Appreciation Right after any amendment shall conform to the provisions of the
Plan. A Stock Appreciation Right shall terminate upon the termination or
expiration of the related Option.
6.6. Transferability of Options and Stock Appreciation Rights. (a) Except
as provided in subsection (b) below, an Option granted under the Plan may not be
transferred except by will or the laws of descent and distribution and, during
the lifetime of the person to whom granted, may be exercised only by such
person. A Stock Appreciation Right may not be transferred to anyone and may be
exercised only by the optionee to whom it was granted.
(b) Notwithstanding subsection (a) above the Committee may determine at
the time of grant or thereafter, that an Option granted under the Plan may be
transferred by the optionee to one or more members of the optionee's immediate
family, to a partnership of which the only partners are members of the
optionee's immediate family, or to a trust established by the optionee for the
benefit of one or more members of the optionee's immediate family. For this
purpose immediate family means the optionee's spouse,
page 6
parents, children, grandchildren and the spouses of such parents, children and
grandchildren. A transferee described in this subsection may not further
transfer an Option except by will or the laws of descent and distribution. An
Option transferred pursuant to this subsection shall remain subject to the
provisions of the Plan, including, but not limited to, the provisions of Section
6.7 relating to the exercise of the Option upon the death, retirement or
termination of employment of the optionee.
6.7. Death, Retirement and Termination of Employment. Subject to the
condition that no Option may be exercised in whole or in part after the
expiration of the option period specified in the applicable option agreement and
subject to the Committee's right to cancel any Option in accordance with Section
9.6:
(a) Upon termination of employment prior to an optionee's attainment of
age 55 but after the optionee is eligible for retirement pursuant to a
retirement plan of the Company or any of its subsidiaries, an optionee may,
within three years after the date of such termination, purchase any or all of
the shares subject to an Option granted at least one year prior to such
termination of employment at or after the time or times specified in the
applicable option agreement (determined without regard to such termination of
employment);
(b) Upon termination of employment on or after attainment of age 55 and
after the optionee is eligible for retirement pursuant to a retirement plan of
the Company or any of its subsidiaries, an optionee may, at any time prior to
the expiration of the option period specified in the applicable option
agreement, purchase any or all of the shares subject to an Option granted at
least one year prior to such termination of employment at or after the time or
times specified in the applicable option agreement (determined without regard to
such termination of employment); and
(c) (i) Upon the death of an optionee while employed or after a
termination of employment described in clause (b) above, the person or persons
to whom such optionee's rights under the Option are transferred by will or the
law of descent and distribution may, at any time during the period commencing
one year from the date of grant of such Option and ending on the expiration of
the option period specified in the applicable option agreement, purchase any or
all of the shares remaining subject to the Option at the time of such death at
or after the time the optionee would have been entitled to purchase such shares
had the optionee survived; and
(ii) Upon the death of an optionee after a termination of employment
described in clause (a) above, the person or persons to whom such optionee's
rights under the Option are transferred by will or the law of descent and
distribution may, at any time prior to the expiration of the three year period
specified in clause (a), purchase any or all of the shares remaining subject to
such Option at or after the time the optionee would have been entitled to
purchase such shares had the optionee survived; and
page 7
(d) Upon termination of employment for any reason other than death or
retirement as aforesaid, an optionee's Options shall be cancelled to the extent
not theretofore exercised.
6.8. Waiver of Limitations. Notwithstanding anything to the contrary in
the Plan, in such circumstances as the Committee may deem advisable, the
Committee may waive or otherwise remove, in whole or in part, any restrictions
or limitations applicable to an Option granted to an eligible employee
(including, without limitation, any restriction or limitation on the period
during which such Option may be exercised following termination of such eligible
employee's employment and any restriction or limitation on the exercisability of
such Option) who, at the time of such waiver or removal, is not subject to
Section 16 of the Exchange Act.
ARTICLE VII
RESTRICTED STOCK AWARDS
7.1. Subject to the limitations of the Plan, the Committee shall, after
such consultation with and consideration of the recommendations of management as
the Committee considers desirable, select from eligible employees those
Participants to be granted Restricted Stock Awards and determine the time when
each Award shall be granted, the Vesting Date or Vesting Dates for each Award,
the time or times as of which vested Awards shall be paid and the number of
share credits (each of which shall be equivalent to one share of Common Stock)
subject to each Award.
7.2. Vesting of Restricted Stock Awards. (a) Subject to the rules of
Sections 7.2(b), 7.2(c) and 9.1 each Award shall fully vest and be 100%
nonforfeitable on the Vesting Date.
(b) Subject to the rules of Section 9.1, upon termination of a
Participant's employment prior to the Vesting Date for any reason except for
retirement, as described below, or death, his Awards shall be forfeited and the
Participant shall have no right with respect to such Awards. Upon termination of
employment prior to the Vesting Date by reason of the Participant's retirement
under a retirement plan maintained by the Company or a subsidiary or by reason
of death, an Award granted to such Participant shall be vested and
nonforfeitable to the extent of 20% (or such other percentage as the Committee
shall have determined at the time of grant of such Award) for each complete
twelve month period from the date of the granting of such Award to the date of
such retirement or death.
(c) Notwithstanding the provisions of Sections 7.2(a) and 7.2(b), upon
termination of a Participant's employment prior to 100% vesting under the rules
of Sections 7.2(a) and 7.2(b), the Committee may, in its sole discretion,
determine that Awards granted to such Participant shall be vested to the extent
determined by the Committee but in no event less than the vesting computed under
the rules of Section 7.2(b).
page 8
7.3. Payment of Awards. (a)(i) Subject to the provisions of subparagraph
(ii) below, as soon as practicable after an Award has become vested in
accordance with Section 7.2, such vested Award shall be paid to the Participant
or, in the case of the death of the Participant, his designated beneficiary or
beneficiaries or, in the absence of a designated beneficiary, to the estate of
the Participant.
(ii) The Committee may, in its discretion, provide that payment of vested
Awards be deferred until such time or times as the Committee shall specify at
the time of grant of such Award or thereafter, or such time or times as the
Participant may elect. Any election of a Participant pursuant to the preceding
sentence shall be filed with the Committee in accordance with such rules and
regulations, including any deadline for the making of such an election, as the
Committee may provide.
(b)(i) Except as may be otherwise determined by the Committee at the time
of grant of an Award or thereafter, in addition to the payment provided for in
Section 7.3(a), each Participant (or beneficiary) entitled to payment under
Section 7.3(a) shall receive the dividend equivalent amount calculated under
subparagraph (ii) below.
(ii) The dividend equivalent amount is the number of additional share
credits attributable to the number of share credits awarded plus additional
share credits calculated hereunder. Such additional share credits shall be
determined and credited as of the end of each calendar year by dividing (A) the
aggregate cash dividends which would have been paid had the share credits
awarded or credited under this subparagraph (ii), as the case may be, been
actual shares of Common Stock on the record date for each such dividend during
such calendar year by (B) the average market prices per shares of Common Stock
on the last trading day of each calendar month during the 12 months ending on
the November 30 preceding the date such determination is being made. For this
purpose, the market price on any day shall be the average of the highest and
lowest price of a share of Stock as reported on the composite tape for such day,
unless the Committee determines that another procedure for determining market
price would be more appropriate.
(iii) In such cases as the Committee may deem advisable, the Committee
may, in lieu of the crediting provided for in subparagraph (ii), determine to
pay all or part of the dividend equivalent amount in cash as dividends are
actually paid on Common Stock, or at such other time or times as the Committee
may otherwise determine.
(c) Payments pursuant to Section 7.3(a) and 7.3(b) shall be made in shares
of Common Stock except there may be paid in cash dividend equivalents or that
part of the total payment determined by the Company to be necessary to satisfy
tax withholding.
7.4. Waiver of Restrictions. In such circumstances as the Committee may
deem advisable, the Committee may waive or otherwise remove, in whole or in
page 9
part, any restrictions or limitations to which a Restricted Stock Award was made
subject at the time of grant.
ARTICLE VIII
STOCK UNIT AWARDS
8.1. In addition to granting Options, Stock Appreciation Rights and
Restricted Stock Awards, the Committee shall have authority to grant to eligible
employees Stock Unit Awards which can be in the form of Common Stock or units,
the value of which is based, in whole or in part, on the value of Common Stock.
Subject to the provisions of the Plan, including Section 8.2 below, Stock Unit
Awards shall be subject to such terms, restrictions, conditions, vesting
requirements and payment rules (all of which are sometimes hereinafter
collectively referred to as "rules") as the Committee may determine in its sole
discretion, all such rules applicable to a particular Stock Unit Award to be
reflected in writing and furnished to the employee at the time of grant. The
rules need not be identical for each Stock Unit Award.
8.2. Rules. In the sole discretion of the Committee, a Stock Unit Award
shall be granted subject to the following rules:
(a) Any shares of Common Stock which are part of a Stock Unit Award may
not be assigned, sold, transferred, pledged or otherwise encumbered prior to the
date on which the shares are issued or, if later, the date provided by the
Committee at the time of the Award.
(b) Stock Unit Awards may provide for the payment of cash consideration by
the person to whom such Award is granted or provide that the Award, and Common
Stock to be issued in connection therewith, if applicable, shall be delivered
without the payment of cash consideration.
(c) Stock Unit Awards may relate in whole or in part to certain
performance criteria established by the Committee at the time of grant.
(d) Stock Unit Awards may provide for deferred payment schedules, vesting
over a specified period of employment, the payment (on a current or deferred
basis) of dividend equivalent amounts, with respect to the number of shares of
Common Stock covered by the Award, and elections by the employee to defer
payment of the Award or the lifting of restrictions on the Award, if any.
(e) In such circumstances as the Committee may deem advisable, the
Committee may waive or otherwise remove, in whole or in part, any restrictions
or limitations to which a Stock Unit Award was made subject at the time of
grant.
ARTICLE I
GENERAL PROVISIONS
page 10
9.1. Change in Control. (a)(i) In the case of a Change in Control (as
defined below) of the Company, each Option then outstanding shall (unless the
Committee determines otherwise) immediately become exercisable in full;
(ii) In the case of a Change in Control (as defined below) of the Company,
each Award shall (unless the Committee determines otherwise) immediately be
fully vested and nonforfeitable and shall thereupon be paid as soon as
practicable.
(b) Any determination by the Committee made pursuant to this Section 9.1
may be made as to all outstanding Options or Awards or only as to certain
Options or Awards specified by the Committee and all such determinations shall
be made in cases covered by subparagraphs (i) or (ii) below, prior to or as soon
as practicable after the occurrence of such event and in the cases covered by
subparagraphs (iii) and (iv) below, prior to the occurrence of such event.
(c) A Change in Control shall occur if:
(i) any "person" or "group of persons" as such terms are used in Section
13(d) and 14(d) of the Exchange Act directly or indirectly purchases or
otherwise becomes the "beneficial owner" (as defined in Rule d-3 under the
Exchange Act) or has the right to acquire such beneficial ownership (whether or
not such right is exercisable immediately, with the passage of time, or subject
to any condition), of voting securities representing 25% or more of the combined
voting power of all outstanding voting securities of the Company;
(ii) during any period of two consecutive years, the individuals who at
the beginning of such period constitute the Board of Directors cease for any
reason to constitute at least a majority of the members thereof, unless (1)
there are seven or more directors then still in office who were directors at the
beginning of the period, and (2) the election, or the nomination for election by
the Company's stockholders, of each new director was approved by at least
two-thirds of the directors then still in office who were directors at the
beginning of the period;
(iii) the stockholders of the Company shall approve an agreement to merge
or consolidate the Company with or into another corporation as a result of which
less than 50% of the outstanding voting securities of the surviving or resulting
entity are or are to be owned by the former shareholders of the Company
(excluding from former shareholders, a shareholder who is or, as a result of the
transaction in question, becomes an "affiliate," as defined in Rule 12b-2 under
the Exchange Act, of any party to such consolidation or merger); or
(iv) the stockholders of the Company shall approve the sale of all or
substantially all of the Company's business and/or assets to a person or entity
which is not a wholly-owned subsidiary of the Company.
page 11
9.2. Designation of Beneficiary. Subject to such rules and regulations as
the Committee may prescribe, including the right of the Committee to limit the
types of designations which are acceptable for purposes of the Plan, each
employee who shall be granted an Option or Award under the Plan may designate a
beneficiary or beneficiaries and may change such designation from time to time
by filing a written designation of beneficiaries with the Committee on a form to
be prescribed by it, provided that no such designation shall be effective unless
so filed prior to the death of such employee.
9.3. No Right of Continued Employment. Neither the establishment of the
Plan, the granting of Options or Awards, nor the payment of any benefits
hereunder nor any action of the Company or of the Board of Directors or of the
Committee shall be held or construed to confer upon any person any legal right
to be continued in the employ of the Company or its subsidiaries, each of which
expressly reserves the right to discharge any employee whenever the interest of
any such company in its sole discretion may so require without liability to such
company, the Board of Directors or the Committee except as to any rights which
may be expressly conferred upon such employee under the Plan.
9.4. No Segregation of Cash or Shares. The Company shall not be required
to segregate any cash or any shares of Common Stock which may at any time be
represented by Options, Awards, share credits or dividend equivalent amounts and
the Plan shall constitute an "unfunded" plan of the Company. No employee shall
have voting or other rights with respect to shares of Common Stock prior to the
delivery of such shares. The Company shall not, by any provisions of the Plan,
be deemed to be a trustee of any Common Stock or any other property, and the
liabilities of the Company to any employee pursuant to the Plan shall be those
of a debtor pursuant to such contract obligations as are created by or pursuant
to the Plan, and the rights of any employee, former employee or beneficiary
under the Plan shall be limited to those of a general creditor of the Company.
In its sole discretion, the Board of Directors may authorize the creation of
trusts or other arrangements to meet the obligations of the Company and each
other Participating Company under the Plan, provided, however, that existence of
such trusts or other arrangements is consistent with the unfunded status of the
Plan.
9.5. Delivery of Shares. No shares shall be delivered pursuant to any
exercise of an Option or Stock Appreciation Right or pursuant to the payment of
any Award until the requirements of such laws and regulations as may be deemed
by the Committee to be applicable thereto are satisfied.
9.6. Cancellation of Options, Stock Appreciation Rights and Awards. (a)
Prior to the occurrence of a Change in Control, but not thereafter, the
Committee may, in its sole discretion and with or without cause, cancel any
Option, Stock Appreciation Right or Award in whole or in part to the extent it
has not theretofore been exercised or, in the case of Awards, become vested.
Such cancellation shall be effective as of the date specified by the Committee.
page 12
(b) Notwithstanding subsection (a) above, prior to payment of any Award,
the Committee may, in its sole discretion, in cases involving a serious breach
of conduct by an employee or former employee, or activity of a former employee
in competition with the business of a Participating Company, cancel any Award,
whether or not vested, in whole or in part. Such cancellation shall be effective
as of the date specified by the Committee. The determination of whether an
employee or former employee has engaged in a serious breach of conduct or
activity in competition with the business of a Participating Company shall be
determined by the Committee in good faith and in its sole discretion.
9.7. Transfer, Leave of Absence, etc. For purposes of the Plan: (a) a
transfer of an employee from a Participating Company to an affiliated company,
(b) a leave of absence, duly authorized in writing by the Participating Company,
for military service or sickness, or for any other purpose approved by the
Participating Company if the period of such leave does not exceed ninety days,
and (c) a leave of absence in excess of ninety days, duly authorized in writing
by the Participating Company, provided the employee's right to reemployment is
guaranteed either by a statute or by contract, shall not be deemed a termination
of employment.
9.8. New York Law to Govern. All questions pertaining to the construction,
regulation, validity and effect of the provisions of the Plan shall be
determined in accordance with the laws of the State of New York.
9.9. Payments and Tax Withholding. The delivery of any shares of Common
Stock and the payment of any amount in respect of a Stock Appreciation Right or
Award shall be of the account of the applicable Participating Company and any
such delivery or payment shall not be made until the recipient shall have made
satisfactory arrangements for the payment of any applicable withholding taxes.
ARTICLE X
AMENDMENT AND TERMINATION
10.1. Amendments, Suspension or Discontinuance. The Board of Directors may
amend, suspend or discontinue the Plan, provided, however, that except as
permitted by Section 4.1(c), the Board of Directors may not, without the prior
approval of the stockholders of the Company, make any amendment for which
stockholder approval is necessary to comply with any applicable tax or
regulatory requirement, including for these purposes any approval requirement
which is a prerequisite for exemptive relief under Section 16(b) of the Exchange
Act, and provided, further, that upon the occurrence of a Change in Control no
amendment may adversely affect the rights of any person in connection with any
Option or Award previously granted.
10.2. Termination. No Option or Award shall be granted under the Plan
after expiration of three years from the date upon which the Plan is approved by
vote of the stockholders of the Company.
page 13
page 14
EXHIBIT 10.11
As amended
December 14, 1994
J. P. MORGAN & CO. INCORPORATED
STOCK OPTION PLAN (1984)
SECTION 1. Purpose. The purpose of the Stock Option Plan (1984) (the
"Plan") is to promote the success of J. P. Morgan & Co. Incorporated (the
"Company") by providing a method whereby key employees of the Company and its
subsidiaries may be encouraged to invest in the Common Stock of the Company and
thereby increase their proprietary interest in its business, encourage them to
remain in the employ of the Company or its subsidiaries, and increase their
personal interest in the continued success and progress of the Company.
SECTION 2. Administration. (a) The Board of Directors of the Company
shall designate a committee of not less than three Directors (the "Committee").
No individual shall become a member of the Committee if he shall have been
eligible to receive options to acquire shares of capital stock of the Company or
any subsidiary, or stock appreciation rights, at any time during the 12-month
period prior to his becoming a member and no member of the Committee shall be
eligible to receive options or stock appreciation rights. The Committee shall
have full power and authority, subject to such orders or resolutions not
inconsistent with the provisions of the Plan as may from time to time be issued
or adopted by the Board of Directors, to grant to eligible persons options to
purchase shares of the Company and stock appreciation rights pursuant to the
provisions of the Plan, to interpret the provisions of the Plan and any option
agreements issued under the Plan, and to supervise the administration of the
Plan.
(b) All decisions made by the Committee pursuant to the provisions of
the Plan and related orders or resolutions of the Board of Directors shall be
final, conclusive and binding on all persons, including the Company,
stockholders, employees and optionees.
SECTION 3. Shares Subject to the Plan. (a) The shares to be delivered
upon exercise of options and stock appreciation rights granted under the Plan
may be made available from the authorized but unissued shares of the Company or
from shares reacquired by the Company, including shares purchased in the open
market.
(b) Subject to adjustments made pursuant to the
provisions of paragraph (c) of this Section 3, (i) the aggregate number of
shares to be delivered upon exercise of all options which may be granted under
the plan shall not exceed 1,200,000 shares of Common Stock, $2.50 par value, of
the Company and (ii) the aggregate number of shares which may be delivered to
any one employee upon exercise of all options granted to him under the Plan
shall not exceed 50,000 shares. The aggregate fair market value (determined as
of the time the option is granted) of the stock for which any employee may be
granted "incentive stock options" in any calendar year under this Plan and all
other stock options plans of the Company (and any subsidiary or any parent
corporation within the meaning of Section 425 of the Internal Revenue Code of
1954, as amended (the "Code")) shall not exceed $100,000 plus any unused limit
carryover calculated in accordance with Section 422A of the Code with respect to
such employee. If an option granted under the Plan shall expire or terminate for
any reason other than the exercise of a stock appreciation right, the shares
subject to, but not delivered under, such option shall be available for other
options to the same employee or other employees.
(c) In the event of any merger, reorganization, consolidation,
recapitalization, stock dividend, or other change in corporate structure
affecting the Common Stock of the Company, such adjustment shall be made in the
aggregate number of shares which may be delivered under the Plan, the maximum
number of shares which may be delivered to any one employee under the Plan and
the number and option price of shares subject to the outstanding options granted
under the Plan (provided that the number of shares subject to any option shall
always be a whole number) as may be determined to be appropriate by the
Committee.
SECTION 4. Eligibility and Extent of Participation. (a) The employees
eligible to receive options under the Plan shall consist of key employees of the
Company and its subsidiaries. Stock appreciation rights may be granted to
holders of any unexpired options granted under this Plan or the Company's Stock
Option Plan (1979) and the Company's Stock Option Plan (1974) (collectively
referred to herein as the "Earlier Plans"). For the purpose of the Plan, the
term "subsidiary" is a corporation 50% or more of the voting power of which is
owned by the Company directly or indirectly through one or more subsidiaries.
(b) Subject to the limitations of the Plan, the Committee shall, after
such consultation with and consideration of the recommendations of management as
the Committee considers desirable, select from eligible employees those to be
granted options and determine the time when each option shall be granted and the
number of shares subject to each option and shall select the optionees to
receive stock appreciation rights and the options to which such rights shall
relate. Subject to the provisions of paragraph (b) of Section 3, more than one
option and stock
appreciation right may be granted to the same person.
SECTION 5. Option Agreements. Each option under the Plan shall be
evidenced by an option agreement which shall be signed by an officer of the
Company and the optionee, shall contain such provisions as may be approved by
the Committee and may be supplemented and amended from time to time as approved
by the Committee. Each stock appreciation right shall be evidenced by the option
agreement for the option to which it relates. In the case of any such right
relating to a previously granted option, the option agreement shall be
supplemented to evidence such right.
SECTION 6. Option Price. The price at which shares may be purchased
upon exercise of a particular option shall be not less than 100 per cent of the
fair market value of such shares on the date such option is granted, as
determined in accordance with procedures to be established by the Committee.
SECTION 7. Exercise of Options. (a) Subject to the provisions of the
Plan with respect to death, retirement and termination of employment, the period
during which each option may be exercised shall be fixed by the Committee at the
time such option is granted, but such period in no event shall expire later than
ten years from the date the option is granted.
(b) Each option granted under the Plan may be exercised only after one
year of continued employment by the Company or any of its subsidiaries
immediately following the date the option is granted and, except as provided in
Section 10, only during the continuance of the optionee's employment with the
Company or any of its subsidiaries. Subject to the foregoing limitations and the
terms and conditions of the option agreement and unless cancelled prior to
exercise in accordance with Section 13, each option shall be exercisable in
whole or in part in installments at such time or times as the Committee may
prescribe and specify in the applicable option agreement.
(c) No shares shall be delivered pursuant to any exercise of an option
until payment in full of the option price therefor is received by the Company.
Such payment shall be made in cash or, in the discretion of the Committee,
through the delivery of shares of Common Stock of the Company with a value equal
to the total option price or a combination of cash and shares. In addition, the
Committee may prescribe additional methods of payment to the extent permitted by
applicable law. Any shares so delivered shall be valued at their fair market
value on the exercise date determined as provided in Section 6 hereof. No
optionee or the legal representative, legatee or distributee of an optionee,
shall be deemed to be a holder of any shares subject to any option prior to the
issuance of such shares upon exercise of such option or any related stock
appreciation right.
SECTION 8. Stock Appreciation Rights. (a) Stock appreciation rights
may be granted to such optionees holding options granted under this Plan or the
Plans as the Committee may select and upon such terms and conditions as the
Committee may prescribe. Each stock appreciation right shall relate to a
specific option granted and may be granted concurrently with the option to which
it relates or at any time prior to the exercise, expiration or termination of
such option. A stock appreciation right shall entitle the optionee, subject to
the provisions of the Plan and the related option agreement, to receive from the
Company an amount equal to the excess of the fair market value on the exercise
date of the number of shares for which the stock appreciation right is exercised
over the option price for such shares under the related option. For this
purpose, such fair market value shall be determined as provided in Section 6
hereof.
(b) A stock appreciation right shall be exercisable on such dates or
during such periods as may be determined by the Committee from time to time,
provided that the Committee may, for administrative convenience, determine that,
for any stock appreciation right relating to an option which is not an
"incentive stock option" which right can only be exercised during a limited
period of time in order to satisfy rules imposed by the Securities and Exchange
Commission, the exercise of any such right for cash during such limited period
shall be deemed to occur for all purposes hereunder on the day during such
limited period on which the fair market value of the Common Stock of the
Company, determined as provided in Section 6, is the highest, and provided,
further, that no stock appreciation right shall be exercisable at a time when
the related option could not be exercised nor may it be exercised with respect
to a number of shares in excess of the number for which such option could then
be exercised. Any such determination by the Committee may be changed by the
Committee from time to time and may govern the exercise of stock appreciation
rights granted prior to such determination as well as rights thereafter granted.
(c) A stock appreciation right may be exercised only upon surrender of
the related option by the optionee, which shall be terminated to the extent of
the number of shares for which the stock appreciation right is exercised. Shares
covered by such a terminated option or portion thereof granted under this Plan
shall not be available for other options under this Plan.
(d) The amount payable by the Company upon exercise of a stock
appreciation right may be paid in cash, in shares (valued at their fair market
value on the exercise date determined as provided in Section 6) or in any
combination thereof as the Committee shall determine from time to time. No
fractional shares shall be issued and the optionee shall receive cash in lieu
thereof.
(e) The Committee may impose any other conditions upon the exercise of
a stock appreciation right, which conditions may include a condition that the
stock appreciation right may only be exercised in accordance with rules and
regulations adopted by the Committee from time to time. Such rules and
regulations may govern the right to exercise stock appreciation rights granted
prior to the adoption or amendment of such rules and regulations as well as
stock appreciation rights granted thereafter.
(f) The Committee may at any time amend, terminate or suspend any
stock appreciation right theretofore granted under this Plan, provided that the
terms of any stock appreciation right after any amendment shall conform to the
provisions of this Plan. A stock appreciation right shall terminate upon the
termination or expiration of the related option.
SECTION 9. Transferability of Options and Stock Appreciation Rights.
(a) Except as provided in subsection (b) below, an option granted under the Plan
may not be transferred except by will or the laws of descent and distribution
and, during the lifetime of the person to whom granted, may be exercised only by
such person. A stock appreciation right may not be transferred to anyone and may
be exercised only by the optionee to whom it was granted.
(b) Notwithstanding subsection (a) above, the Committee may determine,
at the time of grant or thereafter, that an Option granted under the Plan may be
transferred by the optionee to one or more members of the optionee's immediate
family, to a partnership of which the only partners are members of the
optionee's immediate family or to a trust established by the optionee for the
benefit of one or more members of the optionee's immediate family. For this
purpose immediate family means the optionee's spouse, parents, children,
grandchildren and the spouses of such parents, children and grandchildren. A
transferee described in this subsection may not further transfer an Option
except by will or the laws of descent and distribution. An Option transferred
pursuant to this subsection shall remain subject to the provisions of the Plan,
including, but not limited to, the provisions of Section 10 relating to the
exercise of the Option upon the death, retirement or termination of employment
of the optionee.
SECTION 10. Death, Retirement and Termination of Employment. Subject
to the condition that no option may be exercised in whole or in part after the
expiration of the option period specified in the applicable option agreement and
subject to the Committee's right to cancel any option in accordance with Section
13:
(a) Upon the death of any optionee while employed or within the
three-year period referred to in clause (b) below, the person or persons to whom
such optionee's rights
under the option are transferred by will or the laws of descent and distribution
may, prior to three years after (i) the date of such optionee's death while
employed or (ii) the termination of such optionee's employment for a reason
referred to in clause (b) below, as the case may be, purchase any or all of the
shares with respect to which such optionee was entitled to exercise such option
immediately prior to his death;
(b) Upon termination of employment as a result of retirement pursuant
to a retirement plan of the Company or any of its subsidiaries, an optionee may,
within three years after the date of such termination, purchase any or all of
the shares with respect to which such optionee was entitled to exercise such
option immediately prior to such termination; and
(c) Upon termination of employment for any reason other than death or
retirement as aforesaid, an optionee's options shall be cancelled to the extent
not theretofore exercised.
SECTION 11. Waiver of Limitations. Notwithstanding anything to the
contrary in the Plan, in such circumstances as the Committee may deem advisable,
the Committee may waive or otherwise remove, in whole or in part, any
restrictions or limitations applicable to an Option granted to an eligible
employee (including, without limitation, any restriction or limitation on the
period during which such Option may be exercised following termination of such
eligible employee's employment any restriction or limitation on the
exercisability of such Option) who, at the time of such waiver or removal, is
not subject to Section 16 of the Securities Exchange Act of 1934.
SECTION 12. Delivery of Shares. No shares shall be delivered pursuant
to any exercise of an option or stock appreciation right until the requirements
of such laws and regulations as may be deemed by the Committee to be applicable
thereto are satisfied.
SECTION 13. Cancellation of Options and Stock Appreciation Rights. The
Committee may, in its sole discretion, and with or without cause cancel any
option or stock appreciation right in whole or in part to the extent it has not
theretofore been exercised. Such cancellation shall be effective as of the date
specified by the Committee.
SECTION 14. Designation of Beneficiary. Subject to such rules and
regulations as the Committee may prescribe, including the right of the Committee
to limit the types of designations which are acceptable for purposes of the
Plan, each employee who shall be granted an option under the Plan may designate
a beneficiary or beneficiaries and may change such designation from time to time
by filing a
written designation of beneficiaries with the Committee on a form to be
prescribed by it, provided that no such designation shall be effective unless so
filed prior to the death of such employee.
SECTION 15. Amendments, Suspension or Discontinuance. The Board of
Directors may amend, suspend, or discontinue the Plan, but except as permitted
by paragraph (c) of Section 3, may not, without the prior approval of the
stockholders of the Company, make any amendment which operates (a) to abolish
the Committee, change the qualification of its members or withdraw the
administration of the Plan from its supervision, (b) to make any material change
in the class of eligible employees as defined in the Plan, (c) to increase the
total number of shares which may be delivered on exercise of options granted
under the Plan, (d) to increase the number of shares which may be delivered to
any one optionee upon exercise of options granted under the Plan, (e) to extend
the maximum option period or the period during which options may be granted
under the Plan, (f) to decrease the minimum option price or (g) to increase the
number of shares with respect to which stock appreciation rights granted under
the Plan may be exercised or to increase the amount which may be received upon
exercise of any stock appreciation right.
SECTION 16. Termination. No option shall be granted under the Plan
after expiration of three years from the date upon which the Plan is approved by
vote of the stockholders of the Company.
Exhibit 10.12
As Amended
December 11, 1996
1995 Stock Incentive Plan of
J.P. Morgan & Co. Incorporated and Affiliated Companies
Article I
Purpose
The purpose of the 1995 Stock Incentive Plan (the "Plan") is to afford
an incentive to key employees of J.P. Morgan & Co. Incorporated (the "Company")
and its affiliates to acquire a proprietary interest in the Company, to
encourage such employees to increase their efforts on behalf of the Company and
remain in its employ, and to more closely align the interests of such key
employees with those of the Company's stockholders.
Article II
Definitions
2.1. The following terms shall have the meanings described below when used in
the Plan:
(a) "Award" shall refer to a Restricted Stock Award granted under
Article VIII or a Stock Unit Award granted under Article IX.
(b) "Board of Directors" shall mean the Board of Directors of the
Company.
(c) "Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time.
(d ) "Committee" shall mean the committee appointed by the Board of
Directors to administer the Plan pursuant to Article III.
(e) "Common Stock" shall mean common stock, par value $2.50, of the
Company.
1
(f) "Company" shall mean J.P. Morgan & Co. Incorporated or any
successor to it in ownership of all or substantially all of its assets.
(g) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
(h) "Fair Market Value" of Common Stock on any day shall mean the
average of the highest and lowest price of Common Stock as reported on the
composite tape for such day, unless the Committee determines that another
procedure for determining Fair Market Value would be more appropriate.
(i) "Incentive Stock Option" shall mean a stock option granted under
Article VI which is intended to meet the requirements of Section 422 of the
Code.
(j) "Nonqualified Stock Option" shall mean a stock option granted under
Article VI which is not intended to be an Incentive Stock Option.
(k) "Option" shall mean an Incentive Stock Option or a Nonqualified
Stock Option.
(l) "Optionee" shall mean a Participant who is granted an Option.
(m) "Participant" shall mean an eligible employee who has been granted
an Option, Stock Appreciation Right or Award under the Plan.
(n) "Participating Company" shall mean the Company, the Trust Company
or any subsidiary or other affiliated entity (whether or not incorporated).
(o) "Plan" shall mean this 1995 Stock Incentive Plan of J.P. Morgan &
Co. Incorporated and Affiliated Companies.
(p) "Related Right" shall mean a Stock Appreciation Right described in
Section 7.2.
(q) "Restricted Period" shall mean the period during which a Restricted
Stock Award is being earned in accordance with Section 8.3.
(r) "Restricted Stock Award" shall mean an award granted under Article
VIII.
(s) "Stand Alone Right" shall mean a Stock Appreciation Right described
in Section 7.3.
(t) "Stock Appreciation Right" shall mean a right granted under Article
VII.
(u) "Stock Unit Award" shall mean an award granted under Article IX.
2
(v) "Trust Company" shall mean Morgan Guaranty Trust Company of New
York or any successor to it in ownership of all or substantially all of its
assets.
Article III
3.1. (a) The Board of Directors shall appoint not less than three
Directors to the Committee which shall administer the Plan. With respect to
determinations regarding the grant, amount, acceleration or forfeiture of
Options, Stock Appreciation Rights or awards with respect to an eligible
employee who is a member of the Board of Directors, the Committee shall be
composed of all directors of the Company who are not employees of the Company or
any other Participating Company. No individual shall be a member of the
Committee unless such individual is disinterested within the meaning of Rule
16b-3 under the Exchange Act. The Committee shall have full power and authority,
subject to such orders or resolutions not inconsistent with the provisions of
the Plan as may from time to time be issued or adopted by the Board of
Directors, to grant to eligible persons Options, Stock Appreciation Rights and
Awards under the Plan; to waive any restrictions or limitations, or impose
additional limitations or restrictions, on previously granted Options, Stock
Appreciation Rights, or Awards (within the parameters of the Plan); to interpret
the provisions of the Plan and any agreements relating to Options, Stock
Appreciation Rights or Awards granted under the Plan; to supervise the
administration of the Plan and to delegate to senior officers of the Company or
the Trust Company the power to act for the Committee as the Committee shall
specify.
(b) All decisions made by the Committee (or such persons acting under a
delegation by the Committee pursuant to subsection 3.1 (a) ) pursuant to the
provisions of the Plan and related orders of the Board of Directors shall be
within the absolute discretion of the Committee or its delegate, as the case may
be, and shall be conclusive and binding on all persons, including the Company,
stockholders, employees and beneficiaries of employees.
Article IV
Shares Subject To The Plan
4.1. (a) Subject to adjustment pursuant to subsection 4.1 (d), the
maximum number of shares of Common Stock with respect to which Options, Stock
Appreciation Rights and Awards may be granted shall be 28,000,000 shares of
Common Stock. Shares of Common Stock may be made available from the authorized
but unissued shares of the Company or from shares reacquired by the Company,
including shares purchased in the open market. If an Option, Stock Appreciation
Right or Award granted under the Plan shall expire or terminate for any reason
other than the exercise of a Related Right (to the extent set forth in
subsection 7.2(c) ), the shares subject to such Option, Stock Appreciation Right
or Award shall be
3
available for other Options, Stock Appreciation Rights and Awards to the same
Participant or other eligible employees. Any shares delivered in payment of the
exercise price of an Option shall be available for other Options, Stock
Appreciation Rights and Awards to the same Participant or other eligible
employees.
(b) Subject to adjustment pursuant to subsection 4.1 (d), of the total
shares of Common Stock referred to in subsection 4.1 (a), the number of shares
of Common Stock with respect to which Awards may be granted shall not exceed
7,000,000 shares of Common Stock.
(c) Subject to adjustment pursuant to subsection 4.1 (d), of the total
shares of Common Stock referred to in subsection 4.1 (a), the number of shares
of Common Stock with respect to which Options or Stock Appreciation Rights may
be granted to any Participant during the term of the Plan shall not exceed
2,800,000 shares of Common Stock.
(d) In the event that the Committee shall determine that any stock
dividend, extraordinary cash dividend, recapitalization, reorganization, merger,
consolidation, split-up, spin-off, combination, exchange of shares, warrants or
rights offering to purchase Common Stock at a price substantially below fair
market value, or other similar corporate event affects the Common Stock such
that an adjustment is required in order to preserve the benefits or potential
benefits intended to be made available under this Plan, then the Committee
shall, in its sole discretion, and in such manner as the Committee may deem
equitable, adjust any or all of ( 1 ) the number and kind of shares which
thereafter may be awarded or optioned and sold or made the subject of Stock
Appreciation Rights under the Plan, (2) the number and kind of shares subject to
outstanding Options, Stock Appreciation Rights and Awards, and (3) the option
price with respect to any of the foregoing and/or, if deemed appropriate, make
provision for a cash payment to a Participant. The number of shares subject to
any Option, Stock Appreciation Right or Award shall always be a whole number.
Article V
Eligibility
5.1. The employees eligible to participate in the Plan and receive
Options, Stock Appreciation Rights and Awards under the Plan shall consist of
key employees of the Company and other Participating Companies.
4
Article VI
Stock Options
6.1. Grant of Options. Subject to the limitations of the Plan, the
Committee shall, after such consultation with and consideration of the
recommendations of management as the Committee considers desirable, select from
eligible employees those Participants to be granted Options and determine the
time when each Option shall be granted and the number of shares subject to each
Option. Options may be either Incentive Stock Options or Nonqualified Stock
Options and more than one Option may be granted to the same person. Options
shall be evidenced in such manner as may be approved by the Committee. Options
may be amended or supplemented from time to time as approved by the Committee,
provided that the terms of such Options after being amended or supplemented
conform to the terms of the Plan.
6.2. Option Price. The price at which shares may be purchased upon
exercise of a particular Option shall be not less than 100% of the Fair Market
Value of such shares on the date such Option is granted.
6.3. Medium and Time of Payment. No shares shall be delivered pursuant
to any exercise of an Option until payment in full of the Option price therefor
is received by the Company. Such payment shall be made in cash or, unless
prohibited by the Committee, through the delivery of shares of Common Stock of
the Company with a Fair Market Value equal to the total Option price or a
combination of cash and shares. The Committee may prescribe additional methods
of payment to the extent permitted by applicable law. Any shares so delivered
shall be valued at their Fair Market Value on the exercise date, or on such
other date as determined by the Committee for administrative convenience. No
Optionee, transferee, legal representative, legatee or distributee of any
Optionee shall be deemed to be a holder of any shares subject to any Option
prior to the issuance of such shares upon exercise of such Option or any related
Stock Appreciation Right.
6.4. Term and Exercisability of Options. An Option shall be exercisable
ratably on each of the first three anniversaries of the date of grant of such
Option or as otherwise determined by the Committee, but in no event shall such
Option be exercised earlier than one year or later than ten years from the date
the Option is granted. The Committee may require that an Option only be
exercised upon the achievement of such performance objectives as the Committee
shall designate. An Option shall be subject to earlier termination as provided
in Section 6.6 with respect to death, retirement and termination of employment
or as provided in Section 10.6.
6.5. Transferability of Options. (a) Except as provided in subsection
(b) below, an Option may not be sold, assigned, transferred, pledged,
hypothecated or otherwise disposed of, except by will or the laws of descent and
distribution and, during the lifetime of the
5
Optionee, may be exercised only by such Optionee.
(b) Notwithstanding subsection (a) above, the Committee may determine
that an Option may be transferred by the Optionee to one or more members of the
Optionee's immediate family, to a partnership of which the only partners are
members of the Optionee's immediate family, or to a trust established by the
Optionee for the benefit of one or more members of the Optionee's immediate
family. For this purpose immediate family means the Optionee's spouse, parents,
children, grandchildren and the spouses of such parents, children and
grandchildren. A transferee described in this subsection may not further
transfer an Option. An Option transferred pursuant to this subsection shall
remain subject to the provisions of the Plan, including, but not limited to, the
provisions of Section 6.6 relating to the exercise of the Option upon the death,
retirement or termination of employment of the Optionee, and shall be subject to
such other rules as the Committee shall determine.
6.6. Death, Retirement and Termination of Employment. Subject to the
condition that no Option be exercised in whole or in part after the expiration
of the Option period specified by the Committee, and subject to the Committee's
right to cancel any Option in accordance with Section 10.6, unless otherwise
determined by the Committee:
(a) Upon termination of employment prior to an Optionee's attainment of
age 55 but after the Optionee is eligible for retirement pursuant to a
retirement plan of the Company or any of its subsidiaries, an Optionee or a
transferee described in subsection 6.5(b), may, within three years after the
date of such termination, purchase any or all of the shares subject to an Option
granted at least one year prior to such termination of employment, at or after
the time or times the Optionee would have been entitled to purchase such shares
had the Optionee not terminated employment;
(b) Upon termination of employment on or after an Optionee's attainment
of age 55 and after the Optionee is eligible for retirement pursuant to a
retirement plan of the Company or any of its subsidiaries, an Optionee or a
transferee described in subsection 6.5(b), may, at any time prior to the
expiration of the Option period, purchase any or all of the shares subject to an
Option granted at least one year prior to such termination of employment, at or
after the time or times the Optionee would have been entitled to purchase such
shares had the Optionee not terminated employment;
(c) Upon the death of an Optionee after a termination of employment
described in subsections (a) or (b) above, the Optionee's designated
beneficiary, or if none, the person or persons to whom such Optionee's rights
under the Option are transferred by will or the laws of descent and
distribution, or a transferee described in subsection 6.5(b), may, at any time
prior to the expiration of the Option period determined under subsection (a) or
(b), as the case may be, purchase any or all of the shares subject to an Option
at or after the time the Optionee would have been entitled to purchase such
shares had the Optionee survived;
6
(d) Upon the death of an Optionee while employed, the Optionee's
designated beneficiary, or if none, the person or persons to whom such
Optionee's rights under the Option are transferred by will or the laws of
descent and distribution, or a transferee described in subsection 6.5(b), may,
within three years after the date of such death, but no later than the
expiration of the Option period, purchase any or all of the shares subject to an
Option at or after the time the Optionee would have been entitled to purchase
such shares had the Optionee survived; and
(e) Upon termination of employment for any reason other than death or
retirement as aforesaid, an Optionee's Options, including any Options
transferred pursuant to subsection 6.5(b), shall be cancelled to the extent not
theretofore exercised. In addition, the Optionee shall repay to the Company the
value of the difference between the Fair Market Value on the date of exercise
over the Option price of any Options exercised within the six month period
preceding the date of such termination and the value of any Related Right
described in Section 7.2 exercised during such period.
Article VII
Stock Appreciation Rights
7.1. Grant of Stock Appreciation Rights. Subject to the limitations of
the Plan, the Committee shall, after such consultation with and consideration of
the recommendations of management as the Committee considers desirable, select
from eligible employees those Participants to be granted Stock Appreciation
Rights and determine the time when each Stock Appreciation Right shall be
granted and such other terms of each Stock Appreciation Right pursuant to this
Article VII. Stock Appreciation Rights may be granted either alone ("Stand Alone
Rights") or in conjunction with all or part of any Option granted under the Plan
( "Related Rights" ) . In the case of a Nonqualified Stock Option, Related
Rights may be granted either at or after the time of the grant of the
Nonqualified Stock Option. In the case of an Incentive Stock Option, Related
Rights may be granted only at the time of the grant of the Incentive Stock
Option.
7.2. Related Rights. (a) A Related Right shall be exercisable only at
such time or times and to the extent that the Option to which it relates shall
be exercisable in accordance with Article 6, provided that the Committee may,
for administrative convenience, determine that, for any Related Right which can
only be exercised during a limited period of time in order to satisfy rules
imposed by the Securities and Exchange Commission, the exercise of any such
Related Right for cash during such limited period shall be deemed to occur for
all purposes hereunder on the day during such limited period on which the Fair
Market Value of the Common Stock is the highest. A Related Right granted with
respect to an Option shall terminate and no longer be exercisable upon the
termination or exercise of the related Option, provided that, unless otherwise
provided by the Committee, a Related Right granted with
7
respect to less than the full number of shares covered by a related Option shall
only be reduced if and to the extent that the number of shares covered by the
exercise or termination of the related Option exceeds the number of shares not
covered by the Related Right, provided further that, in the event of the death
of the Participant, the Related Right shall be cancelled to the extent not
theretofore exercised, whether or not the related Option is cancelled.
(b) Upon the exercise of a Related Right, a Participant shall be
entitled to receive up to, but not more than, an amount in cash or shares of
Common Stock equal in value to the excess of the Fair Market Value of one share
of Common Stock over the Option price per share of Common Stock of the related
Option multiplied by the number of shares of Common Stock in respect of which
the Related Right shall have been exercised. The Committee shall have the right
to determine the form of payment. Any shares delivered in payment shall be
valued at their Fair Market Value on the date of exercise. No fractional shares
shall be issued and the Participant shall receive cash in lieu thereof.
(c) Upon the exercise of a Related Right, the Option or part thereof to
which such Related Right is related shall be deemed to have been exercised for
the purpose of the limitations set forth in Section 4.1 on the number of shares
of Common Stock to be issued under the Plan, but only to the extent of the
number of shares of Common Stock issued under the Related Right.
7.3. Stand Alone Rights. (a) A Stand Alone Right shall be exercisable
ratably on each of the first three anniversaries of the grant of such Stand
Alone Right or as otherwise determined by the Committee, but in no event shall
such Stand Alone Right be exercised earlier than one year or later than ten
years from the date the Stand Alone Right is granted. The Committee may require
that a Stand Alone Right only be exercised upon the achievement of such
performance objectives as the Committee shall designate. The Committee may, for
administrative convenience, determine that, for any Stand Alone Right which can
only be exercised during a limited period of time in order to satisfy rules
imposed by the Securities and Exchange Commission, the exercise of any such
Stand Alone Right for cash during such limited period shall be deemed to occur
for all purposes hereunder on the day during such limited period on which the
Fair Market Value of the Common Stock is the highest. A Stand Alone Right shall
be subject to earlier termination as provided in subsection 7.3(c) with respect
to death, retirement and termination of employment.
(b) Upon the exercise of a Stand Alone Right, a Participant shall be
entitled to receive up to, but not more than, an amount in cash or shares of
Common Stock equal in value to the excess of the Fair Market Value of one share
of Common Stock on the date of exercise over the Fair Market Value of one share
of Common Stock on the date of grant multiplied by the number of shares in
respect of which the right is being exercised. The Committee shall have the
right to determine the form of payment. Any shares delivered in payment shall be
valued at their Fair Market Value on the date of exercise. No fractional shares
shall be issued and the
8
Participant shall receive cash in lieu thereof.
(c) Subject to the condition that no Stand Alone Right may be exercised
in whole or in part after the expiration of the period specified by the
Committee, and subject to the Committee's right to cancel any Stock Appreciation
Right in accordance with Section 10.6, unless otherwise determined by the
Committee:
(i) Upon termination of employment prior to a Participant's attainment
of age 55 but after the Participant is eligible for retirement pursuant to a
retirement plan of the Company or any of its subsidiaries, a Participant may,
within three years after the date of such termination, exercise any or all of
the Stand Alone Right granted at least one year prior to such termination of
employment, at or after the time or times the Participant would have been
entitled to exercise such Stand Alone Right had the Participant not terminated
employment;
(ii) Upon termination of employment on or after a Participant's
attainment of age 55 and after the Participant is eligible for retirement
pursuant to a retirement plan of the Company or any of its subsidiaries, a
Participant may, at any time prior to the expiration of the Stock Appreciation
Right exercise period, exercise any or all of the Stand Alone Right granted at
least one year prior to such termination of employment, at or after the time or
times the Participant would have been entitled to exercise such Stand Alone
Right had the Participant not terminated employment; and
(iii) Upon termination of employment for any reason other than
retirement as aforesaid, a Participant's Stand Alone Rights shall be cancelled
to the extent not theretofore exercised. In addition, except in the event of
death, the Participant shall repay to the Company the value of any Stand Alone
Right exercised within the six month period preceding the date of such
termination.
7.4. Transfer of Stock Appreciation Rights. A Stock Appreciation Right
may not be transferred to anyone and may only be exercised by the Participant to
whom it is granted
Article VIII
Restricted Stock Awards
8.1. Grant of Restricted Stock Awards. Subject to the limitations of
the Plan, the Committee shall, after such consultation with and consideration of
the recommendations of management as the Committee considers desirable, select
from eligible employees those Participants to be granted Restricted Stock Awards
and determine the time when each Award shall be granted, the vesting date or
vesting dates for each Award, the time or times as of which vested Awards shall
be paid and the number of share credits (each of which shall be equivalent to
one share of Common Stock) subject to each Award. Restricted Stock Awards
9
shall be evidenced in such manner as may be approved by the Committee.
Restricted Stock Awards may be amended or supplemented from time to time as
approved by the Committee, provided that the terms of such Awards after being
amended or supplemented conform to the terms of the Plan. No provision of this
Plan shall be interpreted to prohibit the grant of a Restricted Stock Award
hereunder in connection with awards granted pursuant to the 1995 Executive
Officer Performance Plan of J.P. Morgan & Co. Incorporated and Affiliated
Companies or any other plan of the Company, provided that any such Award
conforms to the terms of this Plan.
8.2. Number of Share Credits. Each Restricted Stock Award shall state
the number of share credits to be subject to the Award.
8.3. Restrictions. A Restricted Stock Award may not be sold, assigned,
transferred, pledged, hypothecated or otherwise disposed of, except by will or
the laws of descent and distribution, for a period of five years from the date
of grant of the Award or such other period as the Committee shall determine, and
for such further period as the payment of Awards may be deferred pursuant to
Section 8.5. The Committee may define the Restricted Period in terms of the
passage of time, the satisfaction of performance criteria, a combination of time
and performance, or in any other manner it deems appropriate. Restricted Stock
Awards shall not be paid until the successful completion of the Restricted
Period except as may be otherwise provided in circumstances of death or
retirement pursuant to Section 8.4, or until the end of any deferral period
described in subsection 8.5(b).
8.4. Death, Retirement and Termination of Employment. Unless otherwise
determined by the Committee:
(a) Upon termination of a Participant's employment prior to the end of
the Restricted Period for any reason except for death, as described below, the
Participant's Awards shall be forfeited and the Participant shall have no right
with respect to such Award.
(b) Upon the death of a Participant, an Award granted to such
Participant shall be (i) 100% (or such other percentage as the Committee shall
have determined at the time of grant of such Award) vested and nonforfeitable
and (ii) shall be payable to the Participant's beneficiary, or if none, the
person or persons to whom such Participant's rights under the Award are
transferred by will or the laws of descent and distribution, subject to any
further deferral of the Award in accordance with subsection 8.5(b), provided
that with respect to an Award subject to performance restrictions, the Committee
shall make such determination with respect to such Award as it deems
appropriate.
8.5. Payment of Awards. (a) Subject to the provisions of subsection (b)
hereof, as soon as practicable after the successful completion of the Restricted
Period, such Award shall be paid to the Participant or, in the case of the death
of the Participant, the Participant's beneficiary, or if none, the person or
persons to whom such Participant's rights under the
10
Award are transferred by will or the laws of descent and distribution.
(b) The Committee may, in its discretion, provide that payment of
Awards be deferred until such time or times as the Committee shall specify, or
such time or times as the Participant may elect. Any election of a Participant
pursuant to the preceding sentence shall be filed with the Committee in
accordance with such rules and regulations, including any deadline for the
making of such an election, as the Committee may provide.
(c) Except as otherwise determined pursuant to subsection 8.6(c),
payments pursuant to this Section 8.5, including any dividend equivalents
determined under subsection 8.6(b), shall be made in shares of Common Stock,
except there may be paid in cash the value of any partial shares of Common Stock
and that part of the total payment determined by the Company to be necessary to
satisfy tax withholding requirements.
8.6. Dividend Equivalents. (a) Except as may be otherwise determined by
the Committee, in addition to the payment provided for in Section 8.5, each
Participant (or beneficiary) entitled to payment under Section 8.5 shall receive
the dividend equivalent amount calculated under subsection (b) hereof.
(b) The dividend equivalent amount is the number of additional share
credits attributable to the number of share credits awarded plus additional
share credits calculated hereunder. Such additional share credits shall be
determined and credited as of the end of each calendar year by dividing (1) the
aggregate cash dividends which would have been paid had the share credits
awarded or credited under this subsection (b), as the case may be, been actual
shares of Common Stock on the record date for each such dividend during such
calendar year by (2) the average market prices per shares of Common Stock on the
last trading day of each calendar month during the 12 months ending on the
November 30 preceding the date such determination is being made. For this
purpose, the market price on any day shall be the average of the highest and
lowest price of a share of Common Stock as reported on the composite tape for
such day. The Committee may designate any other manner for determining and
crediting dividend equivalents as it deems appropriate.
(c) In such cases as the Committee may deem advisable, the Committee
may, in lieu of the crediting provided for in subsection (b), determine to pay
all or part of the dividend equivalent amount in cash or stock as dividends are
actually paid on Common Stock, or at such other time or times as the Committee
may otherwise determine.
11
Article IX
Stock Unit Awards
9.1. Grant of Stock Unit Awards. The Committee shall have authority to
grant to eligible employees Stock Unit Awards which can be in the form of Common
Stock or units, the value of which is based, in whole or in part, on the value
of Common Stock. Subject to the provisions of the Plan, including Section 9.2
below, Stock Unit Awards shall be subject to such terms, restrictions,
conditions, vesting requirements and payment rules (all of which are sometimes
hereinafter collectively referred to as "rules" ) as the Committee may determine
in its sole discretion, all such rules applicable to a particular Stock Unit
Award to be reflected in writing and furnished to the Participant. In no event
shall any Award vest less than one year from the date of grant. The rules need
not be identical for each Stock Unit Award. No provision of this Plan shall be
interpreted to prohibit the grant of a Stock Unit Award hereunder in connection
with awards granted pursuant to the 1995 Executive Officer Performance Plan or
any other plan of the Company, provided that any such Award conforms to the
terms of the Plan.
9.2. Rules. In the sole discretion of the Committee, a Stock Unit Award
shall be granted subject to the following rules
(a) Any shares of Common Stock which are part of a Stock Unit Award may
not be sold, assigned, transferred, pledged, hypothecated or otherwise disposed
of, except by will or the laws of descent and distribution, prior to the date
on which the shares are issued or such other date provided by the Committee at
the time of grant of the Award or thereafter.
(b) Stock Unit Awards may provide for the payment of cash consideration
by the person to whom such Award is granted or provide that the Award, and
Common Stock to be issued in connection therewith, if applicable, shall be
delivered without the payment of cash consideration.
(c) Stock Unit Awards may relate in whole or in part to performance
criteria established by the Committee at the time of grant.
(d) Stock Unit Awards may provide for deferred payment schedules,
vesting over a specified period of employment, the payment (on a current or
deferred basis) of dividend equivalent amounts, with respect to the number of
shares of Common Stock covered by the Award, and elections by the Participant to
defer payment of the Award or the lifting of restrictions on the Award, if any.
12
Article X
General Provisions
10.1. Change in Control. (a) (i) In the case of a Change in Control (as
defined below) of the Company, each Option and Stock Appreciation Right then
outstanding shall (unless the Committee determines otherwise) immediately be
nonforfeitable and exercisable in full;
(ii) In the case of a Change in Control (as defined below) of the
Company, each Award shall (unless the Committee determines otherwise)
immediately be fully vested and nonforfeitable and shall thereupon be paid as
soon as practicable.
(b) Any determination by the Committee made pursuant to this Section
10.1 may be made as to all outstanding Options, Stock Appreciation Rights or
Awards or only as to certain Options, Stock Appreciation Rights or Awards
specified by the Committee, and all such determinations shall be made in cases
covered by paragraphs (c) (i) or (ii) below, prior to or as soon as practicable
after the occurrence of such event and in the cases covered by paragraphs (c)
(iii) and (iv) below, prior to the occurrence of such event.
(c) A Change in Control shall occur if:
(i) any "person" or "group of persons" as such terms are used in
Section 13(d) and 14(d) of the Exchange Act directly or indirectly purchases or
otherwise becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act) or has the right to acquire such beneficial ownership (whether or
not such right is exercisable immediately, with the passage of time, or subject
to any condition), of voting securities representing 25% or more of the combined
voting power of all outstanding voting securities of the Company;
(ii) during any period of two consecutive years, the individuals who at
the beginning of such period constitute the Board of Directors cease for any
reason to constitute at least a majority of the members thereof, unless ( 1 )
there are seven or more directors then still in office who were directors at the
beginning of the period, and (2) the election, or the nomination for election by
the Company's stockholders, of each new director was approved by at least
two-thirds of the directors then still in office who were directors at the
beginning of the period;
(iii) the stockholders of the Company shall approve an agreement to
merge or consolidate the Company with or into another corporation as a result of
which less than 50% of the outstanding voting securities of the surviving or
resulting entity are or are to be owned by the former shareholders of the
Company (excluding from former shareholders, a shareholder who is or, as a
result of the transaction in question, becomes an "affiliate," as defined in
Rule 12b-2 under the Exchange Act, of any party to such consolidation or
merger); or
13
(iv) the stockholders of the Company shall approve the sale of all or
substantially all of the Company's business and/or assets to a person or entity
which is not a wholly-owned subsidiary of the Company.
10.2. Designation of Beneficiary. Subject to such rules and regulations
as the Committee may prescribe, including the right of the Committee to limit
the types of designations which are acceptable for purposes of the Plan, each
Participant who shall be granted an Option or Award under the Plan may designate
a beneficiary or beneficiaries and may change such designation from time to time
by filing a written designation of beneficiaries with the Committee on a form to
be prescribed by it, provided that no such designation shall be effective unless
so filed prior to the death of such Participant.
10.3. No Right of Continued Employment. Neither the establishment of
the Plan, the granting of Options, Stock Appreciation Rights or Awards, nor the
payment of any benefits hereunder nor any action of the Company or of the Board
of Directors or of the Committee shall be held or construed to confer upon any
person any legal right to be continued in the employ of the Company or its
subsidiaries, each of which expressly reserves the right to discharge any
employee whenever the interest of any such company in its sole discretion may so
require without liability to such company, the Board of Directors or the
Committee except as to any rights which may be expressly conferred upon such
employee under the Plan.
10.4. No Segregation of Cash or Shares. The Company shall not be
required to segregate any cash or any shares of Common Stock which may at any
time be represented by Options, Stock Appreciation Rights, Awards, share credits
or dividend equivalent amounts and the Plan shall constitute an "unfunded" plan
of the Company. No employee shall have voting or other rights with respect to
shares of Common Stock prior to the delivery of such shares. The Company shall
not, by any provisions of the Plan, be deemed to be a trustee of any Common
Stock or any other property, and the liabilities of the Company to any employee
pursuant to the Plan shall be those of a debtor pursuant to such contract
obligations as are created by or pursuant to the Plan, and the rights of any
employee, former employee or beneficiary under the Plan shall be limited to
those of a general creditor of the Company. In its sole discretion, the
Committee may authorize the creation of trusts or other arrangements to meet the
obligations of the Company and each other Participating Company under the Plan,
provided, however, that existence of such trusts or other arrangements is
consistent with the unfunded status of the Plan.
10.5. Delivery of Shares. No shares shall be delivered pursuant to any
exercise of an Option or Stock Appreciation Right or pursuant to the payment of
any Award until the requirements of such laws and regulations as may be deemed
by the Committee to be applicable thereto are satisfied.
10.6. Cancellation of Options, Stock Appreciation Rights and Awards.
14
(a) Prior to the occurrence of a Change in Control, but not thereafter,
the Committee may, in its sole discretion and with or without cause, cancel any
Option, Stock Appreciation Right or Award in whole or in part to the extent it
has not theretofore been exercised or, in the case of Awards, become vested.
Such cancellation shall be effective as of the date specified by the Committee.
(b) Notwithstanding subsection (a) above, prior to payment of any
Award, the Committee may, in its sole discretion, in cases involving a serious
breach of conduct by an employee or former employee, or activity of a former
employee in competition with the business of a Participating Company, cancel any
Award, whether or not vested, in whole or in part. Such cancellation shall be
effective as of the date specified by the Committee. The determination of
whether an employee or former employee has engaged in a serious breach of
conduct or activity in competition with the business of a Participating Company
shall be determined by the Committee in good faith and in its sole discretion.
10.7. Transfer, Leave of Absence, etc. For purposes of the Plan: (1 ) a
transfer of a Participant from a Participating Company to an affiliated company,
(2) a leave of absence, duly authorized in writing by the Participating Company,
for military service or sickness, or for any other purpose approved by the
Participating Company H the period of such leave does not exceed ninety days,
and (3) a leave of absence in excess of ninety days, duly authorized in writing
by the Participating Company, provided the Participant's right to reemployment
is guaranteed either by a statute or by contract, shall not be deemed a
termination of employment.
10.8. New York Law to Govern. All questions pertaining to the
construction, regulation, validity and effect of the provisions of the Plan
shall be determined in accordance with the laws of the State of New York.
10.9. Payments and Tax Withholding. The delivery of any shares of
Common Stock and the payment of any amount in respect of a Stock Appreciation
Right or Award shall be of the account of the applicable Participating Company
and any such delivery or payment shall not be made until the recipient shall
have made satisfactory arrangements for the payment of any applicable
withholding taxes.
Article XI
Amendment and Termination
11.1. Amendments, Suspension or Discontinuance. The Board of Directors
may amend, suspend or discontinue the Plan, provided, however, that the Board of
Directors may not, without the prior approval of the stockholders of the
Company, make any amendment for which stockholder approval is necessary to
comply with any applicable tax
15
or regulatory requirement, including for these purposes any approval requirement
which is a prerequisite for exemptive relief under Section 16(b) of the Exchange
Act, and provided, further, that upon or following the occurrence of a Change in
Control no amendment may adversely affect the rights of any person in connection
with any Option, Stock Appreciation Right or Award previously granted.
11.2. Termination. No Option, Stock Appreciation Right or Award shall
be granted under the Plan after expiration of ten years from the date upon which
the Plan is approved by vote of the stockholders of the Company.
16
Exhibit 10.13
1998 PERFORMANCE PLAN OF
J.P. MORGAN & CO. INCORPORATED AND AFFILIATED COMPANIES
ARTICLE I
PURPOSE OF PLAN
The purpose of the Plan is to promote the success of J.P. Morgan & Co.
Incorporated and encourage certain employees to remain in its employ by
providing compensation to such employees.
ARTICLE II
DEFINITIONS
The following words and phrases herein shall have the following meanings unless
a different meaning is plainly required by the context.
2.1 "Award" shall mean any award granted under the Plan.
2.1 "Company" shall mean J.P. Morgan & Co. Incorporated or any successor
to it in ownership of all or substantially all of its assets.
2.3 "Board of Directors" shall mean the Board of Directors of the
Company.
2.4 "Participating Company" shall mean the Company, and any subsidiary or
other affiliated entity (whether or not incorporated).
2.5 "Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
2.6 "Employee" shall mean any executive employed by one or more
Participating Companies who is selected by the Committee to receive an Award
under the Plan.
2.7 "Plan" shall mean the 1998 Performance Plan of J.P. Morgan & Co.
Incorporated and Affiliated Companies, as amended from time to time.
2.8 "Committee" shall mean the Committee established to administer the Plan
in accordance with Section 3.1.
1
2.9 "Stock Incentive Plan" shall mean the 1995 Stock Incentive Plan of J.P.
Morgan & Co. Incorporated and Affiliated Companies, as the same may be amended
from time to time, and any successor plan thereto.
2.10 "Stock Plans" shall mean equity-based compensation plans of the
Company, including but not limited to, the Stock Incentive Plan.
ARTICLE III
ADMINISTRATION OF THE PLAN
3.1. The Committee. The Plan shall be administered by a Committee consisting
of at least three persons chosen by the Board of Directors from among those
members of the Board of Directors who (i) are not eligible to participate in the
Plan and (ii) are not employees of a Participating Company. The Committee may
consult with management but shall have the responsibility of determining the
Employees who are to receive Awards under the Plan and the amount of such Awards
and shall otherwise be responsible for the administration of the Plan. The
Committee also shall construe and interpret the Plan and adopt rules and
regulations governing administration of the Plan, and exercise the remaining
duties and powers conferred on it by the Plan, provided, however, the Committee
may delegate to senior officers of the Company the power to act for the
Committee as the Committee shall specify.
ARTICLE IV
AWARDS UNDER THE PLAN
4.1. Grant of Awards under the Plan. The Committee is hereby authorized to
grant Awards to participants. Subject to the terms of the Plan and any
applicable Award agreement, an Award granted under the Plan (i) may be
denominated or payable in cash, shares of Common Stock of the Company
(including, without limitation, grants or awards under the Stock Plans), other
securities, other awards, or other property, or any combination thereof, and
(ii) shall confer on the holder thereof rights valued as determined by the
Committee and payable to, or exercisable by, the holder of the Award, based, in
whole or in part, upon the Committee's assessment of the level of achievement of
such performance or other goals during such performance or vesting periods as
the Committee shall establish. Subject to the terms of the Plan and any
applicable Award agreement, the performance or other goals for any performance
or vesting period, the length of any performance or vesting period, the amount
of any Award granted, and the amount of any payment or transfer to be made
pursuant to any Award shall be determined by the Committee. Except as otherwise
determined by the Committee, an Award shall be
2
forfeited if the Employee's employment terminates for any reason prior to the
end of the applicable performance or vesting period established by the
Committee.
4.2. Payment. (a) An Award shall be deemed "earned" if and to the extent the
Committee so determines following the close of the applicable performance or
vesting period. Except as provided in Section 4.2(b), Awards earned under the
Plan shall be paid as promptly as practicable after the close of the applicable
year, or after such further vesting or performance period as may be imposed by
the Committee in its sole discretion.
(b) The Committee shall have the right to require that payment of all or any
portion of an earned Award be deferred until such time or times as the
Committee, in its sole discretion, shall determine. In addition, the Committee
may provide that an Employee may elect to defer the payment of any Award earned
under the Plan. Deferral elections shall be made at such time and in such manner
as the Committee shall prescribe. The Committee shall establish such terms,
conditions, rules and regulations as it shall deem necessary and advisable with
respect to deferred Awards including, but not limited to, the time of payment
(including acceleration), the method of determining additional amounts, if any,
to be credited with respect to a deferred Award, the applicable methods of
payment of deferred Awards, and any special rules that may apply in the event of
termination of employment for any reason.
ARTICLE V
GENERAL PROVISIONS
5.1. No Right of Continued Employment. Neither the establishment of the Plan
nor the payment of any benefits hereunder nor any action of any Participating
Company or of the Board of Directors or of the Committee shall be held or
construed to confer upon any person any legal right to be continued in the
employ of a Participating Company and each Participating Company expressly
reserves the right to discharge an Employee whenever the interest of any such
company in its sole discretion may so require without liability to such
Participating Company, the Board of Directors or the Committee except as to any
rights which may be expressly conferred upon such Employee under the Plan.
5.2. Discretion of the Company, Board of Directors and Committee. Any
decision made or action taken by the Company, the Board of Directors or by the
Committee arising out of or in connection with the construction, administration,
interpretation and effect of the Plan shall lie within the absolute discretion
of the Company, the Board of Directors or the Committee, as the case may be, and
shall be conclusive and binding upon all persons.
5.3. Absence of Liability. No member of the Board of Directors or of the
Committee or officer of any Participating Company shall be liable for any act or
action hereunder,
3
whether of commission or omission, taken by any other member, or by an officer,
agent, or employee, or, except in circumstances involving his bad faith, for
anything done or omitted to be done by himself.
5.4. No Segregation of Cash or Shares. (a) The Company shall not be required
to segregate any cash or any other assets which may at any time be represented
by Awards credited to an Employee and the Plan shall constitute an "unfunded"
plan of the Company.
(b) The Company shall not, by any provisions of this Plan, be deemed to be a
trustee of any property, and the liabilities of the Company to any Employee
pursuant to the Plan shall be those of a debtor pursuant to such contract
obligations as are created by or pursuant to the Plan, and the rights of any
Employee, former Employee or beneficiary shall be limited to those of an
unsecured creditor of the Company. In its sole discretion, the Board of
Directors may authorize the creation of trusts or other arrangements to meet the
obligations of the Participating Companies under the Plan, provided, however,
that the existence of such trusts or arrangements is consistent with the
unfunded status of the Plan.
5.5. Inalienability of Benefits and Interests. (a) Except as expressly
provided by the Committee and subsection (b) hereof, no Award, nor any benefit
payable under or interest in the Plan, shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or
charge, and any such attempted action shall be void and no such benefit or
interest shall be in any manner liable for or subject to debts, contracts,
liabilities, engagements or torts of any Employee, or former Employee.
(b) The provisions of subsection (a) hereof shall not apply to an assignment by
the Employee's legal representative or beneficiary of a payment due after the
death of the Employee if such assignment is made for the purposes of settling
the affairs of such deceased Employee nor to a beneficiary designation made by
an Employee to the extent authorized by the Committee.
5.6. New York Law to Govern. All questions pertaining to the construction,
regulation, validity and effect of the provisions of the Plan shall be
determined in accordance with the laws of the State of New York.
5.7. Payment of Awards. Payment of Awards shall be by or for the account of
the Participating Companies and the Company and the Participating Companies may
make such arrangements as they may deem appropriate with respect thereto.
5.8. Cancellation of Awards. (a) Prior to the occurrence of a Change in
Control, but not thereafter, the Committee may, in its sole discretion and with
or without cause, cancel any Award in whole or in part to the extent it has not
theretofore become vested. Such cancellation shall be effective as of the date
specified by the Committee.
4
(b) Notwithstanding subsection (a) above, prior to payment of any Award, the
Committee may, in its sole discretion, in cases involving a serious breach of
conduct by an Employee or former Employee, or activity of a former Employee in
competition with the business of a Participating Company, cancel any Award,
whether or not vested, in whole or in part. Such cancellation shall be effective
as of the date specified by the Committee. The determination of whether an
Employee or former Employee has engaged in a serious breach of conduct or
activity in competition with the business of a Participating Company shall be
determined by the Committee in good faith and in its sole discretion.
5.9. Change in Control. (a) In the event of a Change in Control, the payment
of all outstanding Awards (whether or not vested, earned, deferred or subject to
attainment of further goals) shall (unless the Committee otherwise determines)
be made as soon as practicable and the Committee shall, in its discretion,
determine the terms of such payments, if any, including but not limited to, the
amount and form of such payments.
(b) For purposes of this Section 5.9, a Change in Control shall have the same
meaning as specified in Section 10.1(c) of the Stock Incentive Plan. In
addition, any determination made by the Committee under Section 5.9(a) shall be
made in cases covered by a Change in Control as defined in Section 10.1(c)(i) or
(ii) of the Stock Incentive Plan prior to or as soon as practicable after the
occurrence of such event and in cases covered by a Change in Control as defined
in Section 10.1(c)(iii) and (iv) of the Stock Incentive Plan prior to the
occurrence of such event.
ARTICLE VI
AMENDMENT, SUSPENSION OR TERMINATION OF PLAN
The Board of Directors or the Committee may from time to time amend, suspend or
terminate the Plan in whole or in part, and if suspended or terminated, may
reinstate any or all of the provisions of the Plan, except that without the
consent of the Employee no amendment, suspension or termination of the Plan
shall adversely affect the rights of any Employee with respect to an Award
previously made to such Employee.
5
Exhibit 10.16
JPMorgan Chase & Co.
Severance Policy—Summary of Terms
Purpose:
To provide severance and other benefits in the case of involuntary termination, except
for cause.
Benefit Amount:
For executive officers other than the CEO, an amount equal to two times current
base salary, plus two times such officer’s three-year average cash performance bonus. For the CEO,
an amount equal to the greater of (a) $22.2 million or (b) three
times current base salary and, three times his three-year average cash
performance bonus.
Treatment of Stock Awards:
Under the terms and conditions of restricted stock unit awards and
option grants, upon a job elimination:
(1) officers would be entitled to full vesting of restricted stock units, except that
performance-based restrictions on restricted stock or other stock-based awards would continue; and
(2) stock options (other than Growth Performance Incentive Program stock options) would become
exercisable immediately and remain exercisable for their term for persons who are retirement
eligible and for up to two years for persons not retirement eligible.
Welfare Benefits:
Officers continue to receive medical and dental benefits for two years following
such termination (three years for the CEO).
Severance provisions for James Dimon are contained in his employment agreement.
EXHIBIT 10.28
FIRST CHICAGO CORPORATION
STOCK INCENTIVE PLAN
1. Purpose
The purpose of the First Chicago Corporation Stock Incentive Plan is to
provide incentive and rewards for Employees of the Corporation and its
Subsidiaries (i) to support the execution of the Corporation's business And
human resource strategies and the achievement of its goals and (ii) to Associate
the interests of Employees with those of the Corporation's stockholders.
2. Definitions
(a) "Award" includes, without limitation, stock options (including
incentive stock options under Section 422 of the Code), stock appreciation
rights, performance share or unit awards, dividend or equivalent rights, stock
awards, restricted share or unit awards, or other awards that are valued in
whole or in part by reference to, or are otherwise based on, the Corporation's
Common Stock ("other Common Stock-based Awards"), all on a stand alone,
combination or tandem basis, as described in or granted under this Plan.
(b) "Award Summary" means a written summary setting forth the terms and
conditions of each Award made under this Plan.
(c) "Board" means the Board of Directors of the Corporation, excluding any
member who is an officer or employee of the Corporation or who otherwise would
not be considered a disinterested person within the meaning of Rule 16b-3 of the
Securities and Exchange Commission.
(d) "Code" means the Internal Revenue Code of 1986, as amended from time to
time.
(e) "Committee" means the Organization Committee of the Board or such other
committee of the Board as may be designated by the Board from time to time to
administer this Plan.
(f) "Common Stock" means the $5.00 par value Common Stock of the
Corporation.
(g) "Corporation" means First Chicago Corporation, a Delaware
corporation.
(h) "Employee" means an employee of First Chicago Corporation or a
Subsidiary.
(i) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(j) "Fair Market Value" means the average of the highest and the lowest
quoted selling price on the New York Stock Exchange Composite
Transactions Tape on the relevant valuation date or, if there were no sales on
the valuation date, on the next preceding date on which such selling prices were
recorded; provided, however, that the Committee may specify some other
definition of Fair Market Value with respect to any particular Award.
(k) "Participant" means an Employee who has been granted an Award
under the Plan.
(l) "Plan" means this First Chicago Corporation Stock Incentive
Plan.
(m) "Plan Year" means a twelve-month period beginning with January 1 of
each year.
(n) "Subsidiary" means any corporation or other entity, whether domestic or
foreign, in which the Corporation has or obtains, directly or indirectly, a
proprietary interest of more than 50% by reason of stock ownership or otherwise.
3. Eligibility
Any Employee selected by the Committee is eligible to receive an Award.
4. Plan Administration
(a) Except as otherwise determined by the Board, the Plan shall be
administered by the Committee. The Board, or the Committee to the extent
determined by the Board, shall periodically make determinations with respect to
the participation of Employees in the Plan and, except as otherwise required by
law or this Plan, the grant terms of Awards including vesting
schedules, price, length of relevant performance, restriction or option period,
dividend rights, post-retirement and termination rights, payment alternatives
such as cash, stock, contingent awards or other means of payment consistent with
the purposes of this Plan, and such other terms and conditions as the Board or
the Committee deems appropriate.
(b) The Committee shall have authority to interpret and construe the
provisions of the Plan and the Award Summaries and make determinations pursuant
to any Plan provision or Award Summary which shall be final and binding on all
persons. No member of the Committee shall be liable for any action or
determination made in good faith, and the members shall be entitled to
indemnification and reimbursement in the manner provided in the Corporation's
Certificate of Incorporation, as it may be amended from time to time.
(c) The Committee may designate persons other than its members to carry out
its responsibilities under such conditions or limitations as it may set, other
than its authority with regard to Awards granted to Employees who are officers
or directors of the Corporation for purposes of Section 16 of the Exchange Act.
(d) The Committee shall have the authority at any time prior to a Change of
Control (as defined in Section 12(b)) to cancel Awards for reasonable cause and
to provide for the conditions and circumstances under which Awards shall be
forfeited.
5. Stock Subject To The Provisions Of This Plan
(a) The stock subject to the provisions of this Plan shall be
shares of authorized but unissued Common Stock and shares of Common Stock held
as treasury stock. Subject to adjustment in accordance with the provisions of
Section 10, and subject to Section 5(c) below, the total number of shares of
Common Stock available for grants of Awards in any Plan Year shall not exceed 2%
of the outstanding Common Stock as reported in the Corporation's Annual Report
on Form 1O-K for the fiscal year ending immediately prior to such Plan Year.
(b) The exercise of an option or stock appreciation right granted in tandem
therewith will reduce proportionately the amount of shares subject to the tandem
stock appreciation right or option. In addition, any shares ceasing to be
subject to the related option or right because of such reduction shall not
increase the number of shares of Common Stock available for future Awards
granted under the Plan. The grant of a performance or restricted share Unit
Award shall be deemed to be equal to the maximum number of shares which may be
issued under the Award. Where the value of an Award is variable on the date it
is granted, the value shall be deemed to be the maximum limitation of the Award.
Awards payable solely in cash will not reduce the number of shares available for
Awards granted under the Plan.
(c) There shall be carried forward and be available for Awards under the
Plan in succeeding Plan Years, in addition to shares available for grant under
paragraph (a) of this Section 5, all of the following: (i) any unused portion of
the limit set forth in paragraph (a) of this Section 5 for a prior Plan Year;
(ii) shares represented by Awards which are cancelled, forfeited, surrendered,
terminated, paid in cash or expire unexercised; (iii) the excess amount of
variable Awards which become fixed at less than their maximum limitations; (iv)
authorized shares as to which options, restricted shares, performance shares or
stock appreciation rights were not granted under either the First Chicago
Corporation 1983 Stock Option Plan or the First Chicago Corporation Strategic
Stock Incentive Plan; and (v) shares under either of those plans subject to
stock options, restricted shares, performance shares or stock appreciation
rights which are forfeited, surrendered, terminated or expire unexercised.
6. Awards Under This Plan
As the Board or Committee may determine, the following types of Awards and
other Common Stock-based Awards may be granted under this Plan on a stand alone,
combination or tandem basis:
(a) Stock Option. A right to buy a specified number of shares of
Common Stock at a fixed exercise price during a specified time, all as the
Committee may determine; provided that the exercise price of any option shall
not be less than 100% of the Fair Market Value of the Common Stock on the date
of grant of the Award.
(b) Incentive Stock Option. An Award in the form of a stock
option which shall comply with the requirements of Section 422 of the Code or
any successor Section as it may be amended from time to time. Subject to
adjustment in accordance with the provisions of Section 10, the aggregate number
of shares which may be subject to incentive stock option Awards under this Plan
shall not exceed 7,000,000 shares, subject in any Plan Year tothe limitations of
Section 5 of this Plan.
(c) Stock Appreciation Right. A right to receive the excess of
the Fair Market Value of a share of Common Stock on the date the stock
appreciation right is exercised over the Fair Market Value of a share of Own
Stock on the date the stock appreciation right was granted.
(d) Restricted and Performance Shares. A transfer of Common Stock to a
Participant, subject to such restrictions on transfer or other incidents of
ownership, or subject to specified performance standards, for such periods of
time as the Committee may determine.
(e) Restricted and Performance Share Unit. A fixed or variable
share or dollar denominated unit subject to such conditions of vesting,
performance and time of payment as the Committee may determine, which unit may
be paid in Common Stock, cash or a combination of both.
(f) Dividend or Equivalent Right. A right to receive dividends or their
equivalent in value in Common Stock, cash or in a combination of both with
respect to any new or previously existing Award.
(g) Stock Award. An unrestricted transfer of ownership of Common Stock
which may only be made to Employees other than Employees who are officers or
directors of the Corporation for purposes of Section 16 of the Exchange Act.
(h) Other Stock-Based Awards. Other Common Stock-based Awards
which are-related to or serve a similar function to those Awards set forth in
this Section
6. In addition to granting Awards for purposes of incentive compensation, Awards
may also be made in tandem with or in lieu of current or deferred Employee
compensation. No Common Stock shall be issued pursuant to any Award unless
consideration at least equal to the par value thereof has been Received by the
Corporation in the form of cash, services rendered or property.
7. Award Summaries
Each Award under the Plan shall be evidenced by an Award Summary. Delivery
of an Award Summary to each Participant shall constitute an agreement, Subject
to Section 4(d) and Section 9 hereof, between the Corporation and the
Participant as to the terms and conditions of the Award.
8. Other Terms and Conditions
(a) Assignability. No Award shall be assignable or transferable except by
will, by the laws of descent and distribution or pursuant to a qualified
domestic relations order as defined by the Code, and during the lifetime of a
Participant, the Award shall be exercisable only by such Participant or such
Participant's guardian, legal representative or assignee pursuant to a qualified
domestic relations order.
(b) Termination of Employment. The Committee shall determine the
disposition of the grant of each Award in the event of the retirement,
disability, death or other termination of a Participant's employment.
(c) Rights as a Shareholder. A Participant shall have no rights
as a stockholder with respect to shares covered by an Award until the date the
Participant or his nominee, guardian or legal representative is the holder of
record. No adjustment will be made for dividends or other rights for which the
record date is prior to such date.
(d) No Obligation To Exercise. The grant of an Award shall impose
no obligation upon the Participant to exercise the Award.
(e) Payments By Participants. The Committee may determine that Awards for
which a payment is due from a Participant may be payable: (i) in U.S. dollars by
personal check, bank draft or money order payable to the order of the
Corporation, by money transfers or direct account debits; (ii) through The
delivery or deemed delivery based on attestation to the ownership of shares of
Common Stock with a Fair Market Value equal to the total payment due from the
Participant; (iii) by a combination of the methods described in (i) and (ii)
above; or (iv) by such other methods as the Committee may deem appropriate.
(f) Withholding. Except as otherwise provided by the Committee, (i) the
deduction of withholding and any other taxes required by law will be made from
all amounts paid in cash and (ii) in the case of payments of Awards in shares of
Common Stock, the Participant shall be required to pay the amount of any taxes
required to be withheld prior to receipt of such stock, or alternatively, a
number of shares the Fair Market Value of which equals the amount required to be
withheld may be deducted from the payment. The Committee may provide for shares
of Common Stock to be withheld for tax withholding purposes in excess of the
required minimum amount but not in excess of a Participant's maximum marginal
tax rate.
(g) Restrictions On Sale and Exercise. With respect to Employees who are
officers and directors for purposes of Section 16 of the Exchange Act, and if
required to comply with rules promulgated thereunder, (i) no Award providing
forexercise, a vesting period, a restriction period or the attainment of
performance standards shall permit unrestricted ownership of Common Stock by the
Participant for at least six months from the date of grant, and (ii) Common
Stock acquired pursuant to this Plan (other than Common Stock acquired as a
result of the granting of a "derivative security") may not be sold for at least
six months after acquisition.
9. Amendments
The Board may alter, amend, suspend or discontinue the Plan or at any time
prior to a Change of Control (as defined in Section 12(b)) alter or amend any or
all Award Summaries granted under the Plan to the extent permitted by law. Any
such action of the Board may be taken without the approval of the Corporation's
stockholders, but only to the extent that such stockholder approval is not
required by applicable law or regulation, including specifically Rule 16b-3 of
the Securities and Exchange Commission.
10. Recapitalization
The aggregate number of shares of Common Stock as to which Awards may be
granted to Participants, the number of shares thereof covered by each
outstanding Award, and the price per share thereof in each such Award, shall all
be proportionately adjusted for any increase or decrease in the number
of issued shares of Common Stock resulting from a subdivision or consolidation
of shares or other capital adjustment, or the payment of a stock dividend or
other increase or decrease in such shares, effected without receipt of
consideration by the Corporation, or other change in corporate or capital
structure; provided, however, that any fractional shares resulting from any such
adjustment shall be eliminated. The Committee may also make the foregoing
changes and any other changes, including changes in the classes of securities
available, to the extent it is deemed necessary or desirable to preserve the
intended benefits of the Plan for the Corporation and the Participants in the
event of any other reorganization, recapitalization, merger, consolidation,
spin-off, extraordinary dividend or other distribution or similar transaction.
11. No Right To Employment
No person shall have any claim or right to be granted an Award, and the
grant of an Award shall not be construed as giving a Participant the right to be
retained in the employ of the Corporation or a Subsidiary. Further, the
Corporation and each Subsidiary expressly reserve the right at any time to
dismiss a Participant free from any liability, or any claim under the Plan,
except as provided herein or in any Award Summary issued hereunder.
12. Change of Control
(a) Notwithstanding anything contained in this Plan or any Award Summary to
the contrary, in the event of a Change of Control, as defined below, The
following shall occur with respect to any and all Awards outstanding as of such
Change of Control:
(i) automatic maximization of performance standards, lapse of all
restrictions and acceleration of any time periods relating to the exercise,
realization or vesting of such Awards so that such Awards may be immediately
exercised, realized or vested in full on or before the relevant date fixed in
the Award Summary;
(ii) performance shares or performance units shall be paid
entirely in cash;
(iii) upon exercise of a stock option or an incentive stock option
(collectively an "Option") during the 60-day period from and after the date of a
Change of Control, the Participant exercising the Option may in lieu of the
receipt of Common Stock upon the exercise of the Option, elect by written notice
to the Corporation to receive an amount in cash equal to the excess of the
aggregate Value (as defined below) of the shares of Common Stock covered by the
Option or portion thereof surrendered determined on the date the Option is
exercised, over the aggregate exercise price of the Option (such excess is
referred to herein as the "Aggregate Spread"); provided, however, and
notwithstanding any other provision of the Plan, if the end of such 60- day
period from and after the date of a Change of Control is within six months of
the date of grant of an Option held by a Participant who is an officer or
director of the Corporation (within the meaning of Section 16(b) of the Exchange
Act), such Option shall be cancelled in exchange for a cash payment to The
Participant equal to the Aggregate Spread on the day which is six months and one
day after the date of grant of such Option. As used in this Section
12(a)(iii) the term "Value" means the higher of (i) the highest Fair Market
Value during the 60-day period from and after the date of a Change of Control
and (ii) if the Change of Control is the result of a transaction or series of
transactions described in paragraphs (i) or (iii) of the definition of Change of
Control set forth in Section 12(b), the highest price per share of the Common
Stock paid in such transaction or series of transactions (which in the case of
paragraph (i) shall be the highest price per share of the Common Stock as
reflected in a Schedule 18D by the person having made the acquisition);
(iv) if a Participant's employment terminates for any reason other
than retirement or death following a Change of Control, any Options held by the
Participant may be exercised by the Participant until the earlier of three
months after such termination of employment or the expiration date of such
Options; and
(v) all Awards become non-cancellable.
(b) A "Change of Control" of the Corporation shall be deemed to have
occurred upon the happening of any of the following events:
(i) the acquisition, other than from the Corporation, by any
individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2)
of the Exchange Act) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 20% or more of either the then
outstanding shares of Common Stock of the Corporation or the combined voting
power of the then outstanding voting securities of the Corporation entitled to
vote generally in the election of directors, but excluding, for this purpose,
any such acquisition by the Corporation or any of its Subsidiaries, or any
employee benefit plan (or related trust) of the Corporation or its Subsidiaries,
or any corporation with respect to which, following such acquisition, more than
50% of, respectively, the then outstanding shares of common stock of such
corporation and the combined voting power of the then outstanding voting
securities of such corporation entitled to vote generally in the election of
directors is then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the Beneficial
owners, respectively, of the Common Stock and voting securities of the
Corporation immediately prior to such acquisition in substantially the Same
proportion as their ownership, immediately prior to such acquisition, of the
then outstanding shares of Common Stock of the Corporation or the combined
voting power of the then outstanding voting securities of the Corporation
entitled to vote generally in the election of directors, as the case may be;
(ii) individuals who, as of the date hereof, constitute the Board (as
of the date hereof the "Incumbent Board") cease for any reason to constitute at
least a majority of the Board, provided that any individual becoming a director
subsequent to the date hereof whose election, or nomination for election by the
Corporation's shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office is in connection
with an actual or threatened election contest relating to the election of the
directors of the Corporation (as such terms are used in Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act); or
(iii) approval by the stockholders of the Corporation of a
reorganization, merger or consolidation of the Corporation, in each case, with
respect to which all or substantially all of the individuals and entities who
were the respective beneficial owners of the Common Stock and voting securities
of the Corporation immediately prior to such reorganization, merger or
consolidation do not, following such reorganization, merger or consolidation,
beneficially own, directly or indirectly, more than 50% of, respectively, the
then outstanding shares of Common Stock and the combined voting power of the
then outstanding voting securities entitled to vote generally in the election of
directors, as the case may be, of the corporation resulting from such
reorganization, merger or consolidation, or a complete liquidation or
dissolution of the Corporation or of the sale or other disposition of all or
substantially all of the assets of the Corporation.
13. Governing Law
To the extent that federal laws do not otherwise control, the Plan shall be
construed in accordance with and governed by the law of the State of Delaware.
14. Supplemental Plans
The Board shall have the authority to adopt plans, supplemental to This
Plan, covering Employees residing outside the United States, including but not
limited to the United Kingdom.
15. Savings Clause
This Plan is intended to comply in all aspects with applicable law And
regulation, including, with respect to those Employees who are officers Or
directors for purposes of Section 16 of the Exchange Act, Rule 16b-3 of The
Securities and Exchange Commission. In case any one or more of the Provisions of
this Plan shall be held invalid, illegal or unenforceable in any Respect under
applicable law and regulation (including Rule 16b-3), the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby and the invalid, illegal or unenforceable provision shall be
deemed null and void; however, to the extent permissible by law, any provision
which could be deemed null and void shall first be construed, interpreted or
revised retroactively to permit this Plan to be construed in compliance with all
applicable laws (including Rule 16b-3) so as to foster the intent of this Plan.
16. Effective Date and Term
The effective date of this Plan is January 1, 1991, subject to its Approval
by the stockholders of the Corporation at the annual meeting to be held on April
12, 1991, or any adjournment thereof. The Plan shall remain in effect until
terminated by the Board.
EXHIBIT 10.29
NBD BANCORP, INC.
PERFORMANCE INCENTIVE PLAN
(As Amended March 21, 1994)
SECTION 1 - PURPOSE
The NBD BANCORP, INC. PERFORMANCE INCENTIVE PLAN (hereinafter called the
"Plan") is a plan to provide long term incentive compensation to certain current
and former key officers and employees of NBD Bancorp, Inc. (hereinafter called
the "Corporation") and of its affiliated entities (hereinafter, including the
Corporation, called "participating affiliates") based upon such officers' and
employees' individual contributions to the long term growth and profitability of
the Corporation, in order to encourage their identity with shareholder concerns
and their current and continuing interest in the development and financial
success of the Corporation. Because it is expected that the efforts of the
officers and employees selected for participation in the Plan will have a
significant impact on the results of the Corporation's operations in future
years, the Plan is intended to assist the Corporation in attracting and
retaining as officers and employees individuals of superior ability and in
motivating their activities on behalf of the Corporation.
SECTION 2 - DEFINITIONS
(a) The term "affiliated entities" shall mean those corporations and
partnerships in which the Corporation owns directly or indirectly a significant
equity interest as defined under generally accepted accounting principles.
(b) The term "Code" shall mean the Internal Revenue Code of 1986, as the
same may be from time to time amended.
(c) The term "Committee" shall mean the Compensation Committee of the
Board of Directors of the Corporation, the members of which shall be
"disinterested persons"' under Rule 16b-3 of the Securities and Exchange
Commission (or any successor regulation issued under federal securities laws)
and shall be ineligible to participate in the Plan.
(d) The term "company stock" shall mean shares of the common capital stock
of the Corporation available for award or awarded, or subject to options or
rights granted, under the Plan.
(e) The term "market value" shall mean for a share of company stock as of
any date the mean between the highest and lowest sale prices for the company
stock as reflected in the New York Stock Exchange Composite Transactions
Quotations for that date, or if there is no sale on such date, then on the next
preceding date on which a sale has occurred.
1
(f) The term "options" shall mean collectively the incentive stock options
and the non-qualified options available for grant or granted under Section 10 of
the Plan.
(g) The term "optionee" means any person to whom an option or right has
been granted or who becomes a holder of an option or right under Section 10 of
the Plan.
(h) The term "performance share" shall mean one share of company stock
available for award or awarded under Section 8 of the Plan.
(i) The term "rights" shall mean the stock appreciation rights available
for grant or granted in connection with options under Section 10 of the Plan.
(j) The term "share unit" shall mean a unit available for award under the
Plan having a cash value upon distribution equal to the market value of one
share of company stock on the distribution date.
SECTION 3 - EFFECTIVE DATE AND DURATION
Subject to the approval of the Plan by the shareholders of the
Corporation, the Plan shall be generally effective as of January 1, 1988. The
Plan shall continue until it is terminated by the Board of Directors as provided
in Section 12.
SECTION 4 -ADMINISTRATION
The Committee shall be responsible for the general operation and
administration of the Plan and shall have the authority to interpret the Plan
and to adopt administrative rules and regulations governing its operation. The
Committee may delegate the performance of administrative functions to the
Secretary of the Committee.
SECTION 5 - PARTICIPATION, STOCK AWARDS AND OPTION GRANTS
(a) Each year, the Committee shall designate as participants in the Plan
those officers and employees of the participating affiliates and those former
officers and employees who have a consulting arrangement with the Corporation
whom the Committee determines to have significant responsibility for the success
and future growth and profitability of the Corporation.
(b) Each year, the Committee may award shares of company stock,
performance shares, share units, and/or may grant stock options that qualify as
"incentive stock options" within the meaning of Section 422 of the Code or stock
options that do not qualify as incentive stock options and/or stock appreciation
rights for use in connection with options to each current and former officer and
employee whom it has designated as a participant for such year. Upon the
approval by the Board of Directors of the Corporation of the individual awards
and/or grants, if any, made to executive officers and of the total of all awards
and grants made to all other persons, the determination of the Committee as to
each such award and grant shall become final.
2
SECTION 6 - SHARES RESERVED UNDER THE PLAN
There is hereby reserved for award and/or grant under the Plan an
aggregate number of whole shares of company stock equal as nearly as possible
to, but not more than, 5% of the aggregate shares of company stock outstanding
on the first day of January of each year, less the number of shares and share
units awarded or subject to options granted under the Plan during the
immediately preceding four-calendar-year period that have not been forfeited. Of
such aggregate number, no more than 1,000,000 shares of company stock shall be
available for the grant of incentive stock options under the Plan. Shares of
company stock may be authorized but unissued shares, treasury shares, shares
acquired in the open market, or any combination of the foregoing, and if
acquired in the open market, shall be acquired by an agent independent of the
participating affiliates. Any shares of company stock (including performance
shares), share units, or options that are forfeited pursuant to Sections 8(f) or
(g), 9(d) or (e), or 10(h) of the Plan and, to the extent permissible for
purposes of allowing the Plan to continue to be considered as described under
Rule 16b-3 under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), any shares of company stock that are used for full or partial payment of
the purchase price of shares with respect to which an option is exercised
pursuant to Section 10 of the Plan may thereafter again be awarded or made
subject to grant under the Plan. In the event of any change in the outstanding
shares of the common capital stock of the Corporation by reason of a stock
dividend, stock split, recapitalization, merger, consolidation, combination or
exchange of shares, or other similar change, the Committee may make appropriate
adjustments in the aggregate number of shares of company stock (including
performance shares) and share units already awarded or made subject to options
granted or reserved for award or grant under the Plan, in the prices of options
granted, or provide for the substitution of other securities of the class
exchanged for common capital stock of the Corporation in any merger or
consolidation.
SECTION 7 - SHARES AWARDED AND OPTIONS GRANTED UNDER THE PLAN
(a) Shares of company stock (including performance shares), share units,
options and/or rights awarded or granted to a participant may not be sold,
transferred, alienated or assigned (other than by will or the laws of descent
and distribution) during the award period, performance period and/or exercise
period established with respect to such shares, but nothing contained in this
sentence shall preclude the sale or other transfer of shares of company stock
obtained by the proper exercise of any option. During the lifetime of an
optionee, the option or right shall be exercisable only by the optionee
personally or by the optionee's legal representative.
(b) Subject to the vesting provisions of Sections 8(e) and 9(c), shares of
company stock awarded to a participant will become freely transferable by the
participant only at the end of the award period or performance period
established with respect to such shares.
(c) The vesting of awards of shares of company stock (including
performance shares) and/or share units in, and the exercise of options and/or
rights by, a participant under this Plan shall be subject to satisfaction of the
conditions precedent that the participant refrain from engaging in any activity
that, in the opinion of the Committee, is competitive with any activity of the
Corporation or
3
any of the participating affiliates (except that employment at the request of
the Corporation with an entity in which the Corporation has, directly or
indirectly, a substantial ownership interest, or other employment specifically
approved by the Committee, shall not be considered to be an activity that is
competitive with any activity of the Corporation or any of the participating
affiliates) and from otherwise acting, either prior to or after termination of
employment, in any manner inimical or in any way contrary to the best interests
of the Corporation and that the participant furnish to the Corporation such
information with respect to the satisfaction of the foregoing conditions
precedent as the Committee shall reasonably request. Any shares of company stock
awarded or issued under the Plan may be made subject to such other conditions or
restrictions as the Committee deems advisable, including without limitation,
provisions to comply with federal and state securities laws.
(d) Whenever shares of company stock are awarded to a participant, such
shares shall be outstanding, and stock certificates may be issued in the name of
the participant or a book entry may be made by the Corporation's stock transfer
agent for the account of the participant, which certificates and/or account
shall bear a legend stating that the shares are issued subject to the
restrictions set forth in the Plan. Any certificates actually issued for shares
of company stock awarded under the Plan shall be deposited for the benefit of
the participant with NBD Bank, N.A., as custodian until such time as the shares
are vested and transferable.
(e) A participant who is awarded shares of company stock under Section 8
or Section 9 of the Plan shall have full voting rights on such shares, whether
or not the shares are vested or transferable.
(f) Shares of company stock awarded to a participant under Section 8 or
Section 9 of the Plan, whether or not vested or transferable, shall have full
dividend rights with respect to dividends declared after the award, with such
dividends being paid directly to the participant. If all or part of a dividend
is paid in the form of shares of common capital stock of the Corporation, such
shares shall be issued in the same manner, and subject to the same deposit
requirements, vesting provisions and transferability restrictions as the shares
of company stock that are the basis for the dividend. Like requirements,
provisions and restrictions shall be applicable to shares or securities issued
as a result of a merger, consolidation or similar event. A participant to whom
share units have been awarded may be given by the Committee the right to receive
during the performance or award period as additional compensation cash in an
amount equal to the product of (i) the per share dividend on company stock that
is declared after the award of share units and (ii) the number of share units
awarded to such participant, and in such case such sums shall be payable
directly to the participant at the same time as dividends on company stock are
paid.
SECTION 8 - PERFORMANCE AWARDS AND PERIODS
(a) Participants eligible to receive awards of performance shares and/or
share units under the Plan shall be selected by the Committee from among the
more senior officers of the Corporation and its participating affiliates. For
officers who are "covered employees" under Section 162(m) of the Internal
Revenue Code of 1986, as amended, and related regulations, the Committee shall
administer awards under this Section 8 of the Plan in accordance with the
provisions of Appendix A.
4
(b) Effective January 1, 1988, and each year thereafter, the Committee
shall establish a performance period of no less than one (1) year and no more
than five (5) years in duration for the award of performance shares, which
period shall begin on the first day of January of the first year of the period
and shall end on the last day of December of the final year of such period. At
the beginning of a performance period, the Committee shall make such award or
awards of performance shares or share units to each selected participant as it
determines. During a performance period the Committee may increase awards of
performance shares or share units to such selected participants whose increased
corporate responsibilities warrant, in the judgment of the Committee, such
increase and may make awards of performance shares or share units to such newly
selected participants whose corporate responsibilities warrant, in the judgment
of the Committee, such award.
(c) As of the beginning of each performance period, the Committee shall
establish one or more business performance goals for that period, and the weight
to be given to each such goal. In setting performance goals, the Committee may
take into account performance in comparison with such peer financial
institutions as may be selected by the Committee for that purpose. The Committee
may, from time to time thereafter, make appropriate adjustments in performance
goals to reflect major unforeseen transactions, events or circumstances that
alter or affect such goals.
(d) As soon as practicable after the end of each performance period, the
Committee shall determine the extent to which the performance goals for that
period were attained and shall make the distributions, if any, prescribed in
Section 8(h).
(e) If a participant has received an award pursuant to the provisions of
Section 8(b) of the Plan and is employed by the participating affiliates at the
end of a performance period and the Committee determines that the performance
goals for such performance period were fully met, the participant shall be fully
vested at the end of the performance period in the number of performance shares
or share units awarded to the participant for that performance period. In the
event that the Committee determines that the performance goals for such
performance period were only partially met or were unmet, then the Committee
will determine what portion of the performance share or share unit award, if
any, will be distributable for such performance period, and the balance of the
participant's performance share or share unit award, if any, shall be forfeited
to the Corporation as of the last day of the performance period. In the event
that the Committee determines that the satisfaction the performance goals for
such performance period so warrant, the Committee may for that performance
period make additional awards of performance shares or share units to such
selected participants as the Committee determines, which additional performance
shares and/or share units shall be fully vested and nonforfeitable.
(f) Unless the Committee provides otherwise, in the event that before the
end of a performance period a participant dies, becomes totally and permanently
disabled, or retires at normal retirement age, or with the consent of the
participating affiliate with which he or she is employed retires at early
retirement age under a retirement plan maintained by a participating affiliate,
the participant, or the participant's beneficiary or estate in the event of the
participant's death, will be vested as of the day on which such death,
disability or retirement occurs in the number of performance shares or share
units the participant would have received had the participant's
5
employment with the participating affiliate continued to the end of the
performance period, but proportionately reduced to reflect the shorter period of
employment. The balance of performance shares or share units awarded to the
participant for such performance period shall be forfeited to the Corporation as
of the last day of the performance period. In the event of the death of the
participant before the end of a performance period, the Committee may elect to
advance the distribution date.
(g) Unless the Committee provides otherwise, if a participant should
terminate employment with the participating affiliates before the end of a
performance period for a reason other than death, total and permanent
disability, or retirement, all performance shares or share units awarded to the
participant for which the applicable performance period has not ended shall
automatically be forfeited to the Corporation as of the date of termination of
employment.
(h) Except as otherwise provided for in Section 8(f), distribution of
vested performance shares shall be made as soon as practicable after the last
day of the applicable performance period in the form of full shares of company
stock, with fractional shares, if any, being distributed in cash, and
distribution of vested share units shall be made on the same date to the
participant entitled thereto in cash, or in shares of company stock if the
Committee shall so determine.
SECTION 9 - RESTRICTED AWARDS AND PERIODS
(a) Participants eligible to receive awards of company stock or share
units under this Section 9 shall be selected by the Committee from among the
officers and employees of the Corporation and its participating affiliates and
shall exclude, except by special Committee action, any of the more senior
officers selected for participation in the Plan under Section 8.
(b) Each year, the Committee shall establish one (1) or more award periods
for the shares of company stock to be awarded to those participants selected by
the Committee for such awards under this Section 9 during that year. At the
beginning of an award period, the Committee shall make such award or awards of
shares of company stock and/or share units to each selected participant as it
determines. Each award period must extend for at least twelve (12) months after
the date of the award.
(c) If a participant has received an award pursuant to the provisions of
Section 9(b) of the Plan and is employed by a participating affiliate at the end
of the award period, the participant shall be fully vested, at the end of the
award period, in the shares of company stock or share units awarded to the
participant for that award period.
(d) Unless the Committee provides otherwise, in the event that before the
end of an award period a participant dies, becomes totally and permanently
disabled, or retires at normal retirement age, or with the consent of the
participating affiliate with which he or she is employed retires at early
retirement age under a retirement plan maintained by a participating affiliate,
the participant, or the participant's beneficiary or estate in the event of the
participant's death, will be vested, as of the day on which such death,
disability or retirement occurs, in the number of shares of company stock or
share units the participant would have received had the participant's employment
with the
6
participating affiliate continued to the end of the award period, but
proportionately reduced to reflect the shorter period of employment. The balance
of the shares of company stock or share units awarded to the participant shall
be forfeited to the Corporation as of the last day of the award period. The
Committee may provide in such cases for accelerated distribution of awards made
pursuant to the provisions of this Section 9.
(e) Unless the Committee provides otherwise, if a participant should
terminate employment with a participating affiliate before the end of an award
period for a reason other than death, total and permanent disability, or
retirement, all shares of company stock or share units awarded to the
participant for which the applicable award period has not ended shall
automatically be forfeited to the Corporation as of the date of his or her
termination of employment.
(f) Except as otherwise provided for in Section 9(d), distribution of
vested awards of company stock shall be made as soon as practicable after the
last day of the applicable award period in the form of full shares of company
stock, with fractional shares, if any, being awarded in cash, and distribution
of vested share units shall be made on the same date to the participant entitled
thereto in cash, or in shares of company stock if the Committee shall so
determine.
SECTION 10 - GRANTS OF OPTIONS AND RIGHTS
(a) Participants eligible to receive grants of options and/or rights under
this Section 10 shall be selected by the Committee from among the officers and
employees of the Corporation and its participating affiliates and from former
officers and employees who have a consulting arrangement with the Corporation,
and may include officers selected for participation under Section 8 or officers
and employees selected for participation under Section 9 of the Plan. The
Committee may grant more than one option or right to any eligible current or
former officer or employee; but no more than five-tenths of one percent (0.5%)
of the average of the aggregate shares of company stock outstanding on the first
day of January of each of the preceding five years shall be granted subject to
option and/or right during each rolling five-year period to any individual
current or former officer or employee.
(b) The Committee shall determine the eligible participants to whom, and
the time or times at which, options and rights will be granted, the number of
shares to be subject to each option, the duration of each option or right, the
time or times within which the option or right may be exercised, the
cancellation of the option or right (with the consent of the holder thereof) and
the other conditions of the grant of the option or right. The provisions and
conditions of the grants of options and rights need not be the same with respect
to each optionee or with respect to each option or each right.
(c) Except as otherwise specifically provided herein, options granted
pursuant to the Plan shall be subject to the following terms and conditions:
(i) Option Price. At the time the Committee approves the grant, the
Committee shall determine the option price that shall be not less than one
hundred percent (100%) of the market value of the company stock on the date of
Committee approval of the grant.
7
(ii) Payment. The option price shall be paid in full at the time of
exercise. No shares shall be issued until full payment has been received
therefor. Payment may be in cash or, with the prior approval of and upon the
conditions established by the Committee, by delivery of shares of company stock
owned by the optionee; provided, however, that company stock acquired by the
optionee through the exercise of an incentive stock option may not be used for
payment prior to the expiration of the holding periods prescribed in Section
422(a)(1) of the Code. If payment is made by the delivery of shares of company
stock, the value of the shares on the date of exercise shall be the market value
on such day.
(iii) Duration of Options. The duration of options shall be determined by
the Committee, but in no event shall the maximum duration of an incentive stock
option exceed ten (10) years from the date of its grant.
(iv) Restoration Options. The Committee may provide that an option include
the right to receive a restoration option. An option that provides for the grant
of a restoration option shall entitle the participant, upon exercise of the
option prior to retirement of the participant and payment of the option price in
shares of company stock that have been owned by the participant for not less
than six months prior to the date of exercise, to receive a restoration option.
In addition to any other terms and conditions the Committee deems appropriate,
the restoration option shall be subject to the following terms: the number of
shares shall not exceed the number of whole shares delivered in payment of the
original option, the date of grant will be the date of the exercise of the
original option, the exercise price shall not be less than 100% of the market
value of the company stock on the date of the grant of the restoration option,
the option may not be exercised for at least six months after grant, the option
term will not extend beyond the term of the original option, and the restoration
option shall be a non-qualified option.
(v) Other Terms and Conditions. Options may contain such other provisions,
not inconsistent with the provisions of the Plan, as the Committee shall
determine to be appropriate from time to time; provided, however, that no option
shall be exercisable in whole or in part for a period of twelve (12) months from
the date on which the option is granted. Options shall be exercisable in full or
in such cumulative installments as shall be determined by the Committee on the
grant of the option. If an option shall be exercisable in installments, the
Committee may, in its discretion, provide for other events in which all
installments shall become immediately exercisable if any installment be
presently exercisable.
(vi) Incentive Stock Options. The Committee, with respect to each grant of
an option to an optionee, shall determine whether such option shall be an
incentive stock option, and, upon determining that an option shall be an
incentive stock option, shall designate it as such in the written instrument
evidencing such option. If the written instrument evidencing an option does not
contain a designation that it is an incentive stock option, it shall contain a
designation that it is a non-qualified option.
The Committee may not grant a participant incentive stock options in the
aggregate that are
8
first exercisable during any one calendar year with respect to company stock the
aggregate market value of which exceeds $100,000, taking into account all stock
option plans of the Corporation and any parent or subsidiary entities.
(d) The Committee may grant a right to an optionee of any option granted
under the Plan with respect to some or all of the company stocked covered by
such option. A right may be granted either at the time of grant of the option or
at any time thereafter during its term. Each right shall be exercisable only if
and to the extent that the related option is then exercisable; provided, no
right may be exercised until a date at least six (6) months subsequent to the
date of grant of the right. Upon the exercise of a right, the related option
will cease to be exercisable to the extent of the company stock with respect to
which such right is exercised, but shall be considered to have been exercised to
that extent for purposes of determining the number of shares available for the
grant of further awards and/or options pursuant to the Plan. Upon the exercise
or termination of an option, the right with respect to such option shall
terminate to the extent of the shares of company stock with respect to which the
option was exercised or terminated.
(e) For purposes of this Section 10, the word "increment" means with
respect to the exercise of any right associated with an option an amount equal
to the product computed by multiplying (i) the excess of (A) the market value on
the date such right is exercised over (B) the market value on the date the
related option was granted by (ii) the number of shares of company stock with
respect to which such right is being exercised.
(f) Subject to the approval of the Committee, an optionee upon the
exercise of a right may elect to receive either: (i) a number of shares of
company stock equal to the quotient computed by dividing the increment by the
market value on the date of exercise of the right, provided, however, that cash
will be paid in lieu of any fractional share and that the total number of shares
of company stock will not exceed the total number of shares subject to the
related option, or (ii) an amount in cash equal to the increment, or (iii) a
combination of cash in the amount specified by the optionee, and the number of
shares of company stock calculated as provided in clause (i) of this Paragraph
(f), after reducing the increment that was utilized by such cash amount, plus
cash in lieu of any fractional share.
(g) Notwithstanding the provisions of Paragraph (f) of this Section 10,
the Committee may require that a cash payment election may be made only in the
period beginning on the third business day following the date of release for
publication of the quarterly and annual summary statements of earnings of the
Corporation and ending on the twelfth business day following such date. Such
restriction will be imposed on an optionee if it is required under the Exchange
Act.
(h) In the event that the employment of an optionee to whom an incentive
stock option has been granted under the Plan shall be terminated (except as set
forth below) such option may be exercised, to the extent that the option was
exercisable on the date of termination of employment, only until the earlier of
three (3) months after such termination or the original expiration date of the
option; provided, however, that any option held by an optionee whose employment
shall be terminated either (i) for cause or (ii) voluntarily by the optionee and
without the consent of the
9
participating affiliate by which the optionee was employed (which consent shall
be assumed in the case of retirement at normal retirement age but not in the
case of early retirement) shall, to the extent not theretofore exercised,
forthwith terminate. If an optionee to whom an incentive stock option has been
granted under the Plan shall become disabled while employed and such disability
results in the termination of employment, such option may be exercised, to the
extent that the option was exercisable on the date of termination of employment,
by either the disabled optionee or such optionee's legal representative, as the
case may be, and the right to exercise the option shall terminate upon the
earlier of the expiration of twelve (12) months from the date of such
termination of employment or the original expiration date of the option. If an
optionee has been granted an option exercisable in installments, then,
notwithstanding the terms specifying the installments in which the option shall
be exercisable, upon the death or disability of the optionee at any time
subsequent to the expiration of the first year of the term of the option, the
option shall be exercisable within the time period set forth above as to all
shares of company stock remaining subject to the option. For the purposes of
this Section 10, the term "option" shall include any right related to the option
and the term "disabled" shall have the meaning contained within Section 22 (e)
(3) of the Code.
(i) In the event that the employment of an optionee to whom an option
other than an incentive stock option has been granted under the Plan shall be
terminated (except as set forth below), such option may be exercised, to the
extent that the option was exercisable on the date of termination of employment,
only until the earlier of such date after termination as provided by the
Committee on the grant of the option or the original expiration date of the
option; provided, however, that any option held by an optionee whose employment
shall be terminated either (i) for cause or (ii) voluntarily by the optionee and
without the consent of the participating affiliate by which the optionee was
employed (which consent shall be assumed in the case of retirement at normal
retirement age but not in the case of early retirement) shall, to the extent not
theretofore exercised, forthwith terminate. If an optionee to whom an option
other than an incentive stock option has been granted under the Plan shall
become disabled while employed or within six (6) months after the termination of
such employment (other than termination for cause or voluntarily by the optionee
and without the consent of the participating affiliate by which the optionee was
employed), such option may be exercised, to the extent that the option was
exercisable on the date of termination of employment, by either the disabled
optionee or such optionee's legal representative, as the case may be, and the
right to exercise the option shall terminate upon the earlier of such date
following termination of employment as provided by the Committee on the grant of
the option or the original expiration date of the option. If an optionee to whom
an option other than an incentive stock option has been granted under the Plan
shall die while employed or within six (6) months after the termination of such
employment (other than termination for cause or voluntarily by the optionee and
without the consent of the participating affiliate by which the optionee was
employed), such option may be exercised, to the extent that the option was
exercisable on the date of termination of employment, by either the executor,
administrator or personal representative of the optionee's estate or a
transferee of the option under Section 7(a) or a beneficiary designated under
Section 11(b), as the case may be, and the right to exercise the option shall
terminate upon the earlier of such date following termination of employment as
provided by the Committee on the grant of the option or the original expiration
date of the option. If an optionee has been granted an option exercisable in
installments, then, notwithstanding the terms specifying the installments in
which the option shall be exercisable, upon the disability or death of the
10
optionee at any time subsequent to the expiration of the first year of the term
of the option, the option shall be exercisable within the time periods set forth
above as to all shares of company stock remaining subject to the option.
(j) An optionee or a transferee of an option pursuant to Section 7(a)
shall have no rights as a shareholder with respect to any company stock the
subject of either an unexercised or exercised option or right until the optionee
or transferee shall have become the holder of record of such stock, and no
adjustments shall be made for dividends in cash or other property or other
distributions or rights in respect of such stock for which the record date is
prior to the date on which the optionee or transferee shall have in fact become
the holder of record of the company stock acquired pursuant to the option or
right.
SECTION 11 - GENERAL
(a) If, in connection with the payment of any award hereunder in shares of
company stock or the exercise of any option or right hereunder, it is necessary
or desirable, to comply with any law or regulation of any governmental authority
relating to the issuance or sale of securities, that the participant receiving
such shares shall agree that the participant will take the shares for investment
and not with any present intention to resell the same and that the participant
will dispose of such shares only in compliance with such laws and regulations,
the participant shall, upon the request of the Committee, execute and deliver to
the Committee an agreement to such effect satisfactory to the Committee.
(b) If a participant dies prior to the receipt in full of any award under
the Plan to which the participant is entitled and/or prior to the exercise in
full of any option or right granted to the participant, the award or grant shall
be distributed to the participant's designated beneficiary or, in the absence of
a beneficiary designation, to the participant's estate. The designation of a
beneficiary shall be made in writing on a form prescribed by and filed with the
Secretary of the Committee.
(c) Neither the establishment of the Plan nor any provisions of the Plan
or modification thereof shall be held or construed as giving any participant in
the Plan the right to be retained in the service of any participating affiliate
and each participating affiliate expressly reserves its right to discharge any
such participant whenever the interests of such participating affiliate may so
require.
(d) A forfeiture of shares of company stock (including performance shares)
pursuant to Sections 8(e), (f) or (g) or 9(d) or (e) of the Plan shall effect a
complete forfeiture of voting rights, dividend rights and all other rights
relating to the award or grant as of the date of forfeiture.
(e) Each distribution of company stock under this Plan shall be made
subject to such federal, state and local tax withholding requirements as apply
on the distribution date. For this purpose, the Committee may provide for the
withholding of shares of company stock or allow a participant to tender back to
the Corporation shares of company stock received in such distribution.
(f) Notwithstanding any other provisions in the Plan, in the event of a
Change in Control (as
11
hereinafter defined) each participant shall be fully vested in the number of
shares of company stock (including performance shares) or share units awarded to
such participant for all award periods and/or performance periods that, upon
such event, have not yet ended, and all options and rights then outstanding
shall become immediately exercisable. Distribution of all shares of company
stock, and all cash with respect to which rights have become vested, or due
because of the exercise of options or rights, shall be made as soon as
practicable within sixty (60) days after the date of the Change in Control, as
if, in the case of awards under Section 8 and Section 9, the applicable award
period or periods and/or performance period or periods had ended on such date.
In addition, the Corporation shall reimburse a participant for legal fees and
expenses incurred by such participant in successfully seeking to obtain or
enforce any right to distribution under this Section 11(f) and in the event that
it shall be determined that such participant is entitled to a cash distribution
hereunder, such participant shall also be entitled to interest thereon payable
to such participant in an amount equivalent to the prime rate of interest of NBD
Bank, N.A., from time to time during the period from the date such distribution
should have been made to the date it is made.
For purposes of this Plan, a Change in Control shall occur if (i) any
"person" or "group" within the meaning of Section 13(d) and 14(d)(2) of the
Exchange Act becomes the "beneficial owner" as defined in Rule 13d-3 under the
Exchange Act of more than thirty percent (30%) of the then outstanding voting
securities of the Corporation otherwise than through a transaction or
transactions arranged by or consummated with the prior approval of the
Corporation's Board of Directors; or (ii) during any period of twenty- four (24)
consecutive months (not including any period prior to the adoption of this Plan)
Present Directors and/or New Directors cease for any reason to constitute a
majority of the Board. For purposes of subsection (ii) of the preceding
sentence, "Present Directors" shall mean individuals who at the beginning of
such consecutive twenty-four (24) month period were members of the Corporation's
Board and "New Directors" shall mean any director of the Corporation whose
election by the Corporation's Board or whose nomination for election by the
Corporation's shareholders was approved by a vote of at least two- thirds the
Corporation's Directors then still in office who were Present Directors or New
Directors. Notwithstanding any other provisions of the Plan, the provisions of
this Section 11(f) may not be amended after the date a Change in Control occurs
without the written consent of a majority in number of participants.
SECTION 12 - AMENDMENT, SUSPENSION AND TERMINATION
The Board of Directors of the Corporation reserves the right at any time
to amend, suspend, or terminate the Plan; provided, however, no such amendment,
suspension or termination shall adversely affect any award or grant then in
effect unless the prior approval of the participant so affected is obtained. No
amendment of the Plan shall, without approval of the shareholders of the
Corporation, (a) increase the aggregate number of shares of company stock
(including performance shares) that are reserved for award and/or grant under
the Plan (except as provided in Section 6), (b) change the group of eligible
employees under the Plan, (c) change the manner of determining the option price
or the amount payable upon exercise of a right, or (d) increase the maximum
duration of an option.
12
SECTION 13 - GOVERNING LAW
The Plan and all determinations made and action taken pursuant thereto
shall be governed by the laws of the State of Michigan and construed in
accordance therewith.
13
NBD BANCORP, INC.
PERFORMANCE INCENTIVE PLAN
Appendix A
The following provisions have been disclosed to and approved by the
shareholders of the Corporation at the annual meeting held on May 16, 1994:
The performance-based long-term incentive criteria for the chief executive
officer and the next four highest paid executive officers (the "class of
employees" covered) provide for annual grants of performance shares, starting in
1994, that will be earned out 0-100% at the end of a four-year performance
period based on NBD's average return on equity ("ROE") in comparison to average
ROE during the period at peer banking institutions selected by the Committee
(the "performance measure").
TARGET AND MAXIMUM AWARDS. Each participating officer is assigned a target
award at the start of each performance period stated as a percent of salary.
Under the criteria, the Committee is able to grant a maximum target award of
100% of the salary stated in the Corporation's proxy statement for the first
year of the performance period. The target award is multiplied by the
participant's salary and divided by the fair market value of a share of the
Corporation's Common Stock at the start of each performance period to determine
a target number of performance shares. If average ROE during the performance
period is at or above the goal, the target number of performance shares will be
earned. The target number of shares is also the maximum number of shares (the
"maximum award"). If ROE performance is below the goal, individual awards will
be less than the target, down to an ROE threshold below which all performance
shares will be forfeited.
DEFINITIONS. For purposes of determining awards, "Return on Equity" is
calculated by dividing "Net Income" by "Stockholders' Equity" for the year. "Net
Income" is defined as consolidated net income as reported in the Corporation's
audited financial statements for the year, before any extraordinary, unusual or
non-recurring items of gain or loss that are identified and quantified
separately in the audited financial statements, net of tax effect, and after any
preferred dividends. The Compensation Committee retains the right in its
discretion to reduce Net Income for purposes of the performance-based long-term
incentive criteria if it believes that such Net Income produces a level of
payout above the level warranted by management performance. It may not, however,
increase Net Income or individual awards above the level produced by the
calculations. "Stockholders' Equity" is the Corporation's common stockholders'
equity on its consolidated balance sheet at the end of the preceding year.
TERM OF CRITERIA. The term of the performance-based long-term incentive
criteria is five years, 1994 through 1998, unless sooner terminated or amended
by the Board. Any amendment that would materially change the "class of
employees" covered, the "performance measure," or the "maximum award" payable is
subject to stockholder approval.
EXHIBIT 10.30
REVISED AND RESTATED
BANC ONE CORPORATION
1989 STOCK INCENTIVE PLAN
SECTION 1. Establishment, Purpose, and Effective Date of Plan
1.1 Establishment. BANC ONE CORPORATION, a Delaware corporation, (the
"Corporation") hereby establishes the "1989 STOCK INCENTIVE PLAN" (the
"Plan")for key employees of the Corporation and its subsidiaries and for
directors of the Corporation who are not employees of the Corporation or any of
its subsidiaries. The Plan permits the grant of Director Stock Options to such
directors and the grant of Stock-Options, Stock Appreciation Rights, Restricted
Stock Awards, Performance Shares, and Performance Awards to such employees.
1.2 Purpose. The purpose of the Plan is to advance the interests of the
Corporation by encouraging and providing for the acquisition of an equity
interest in the Corporation by directors of the Corporation and key employees of
the Corporation and its subsidiaries and by enabling the Corporation to attract
and retain the services of such directors and key employees upon whose judgment,
interest, and special effort the successful conduct of its operations is largely
dependent.
1.3 Effective Date. The Plan shall become effective as of January 18,
1989, the date of its adoption by the Board of Directors of the Corporation,
subject to ratification by the shareholders of the Corporation within twelve
months of the adoption date.
SECTION 2. Definitions
2.1 Definitions. Whenever used herein, the following terms shall have
their respective meanings set forth below:
(a) "Award" means any Option, Stock Appreciation Right, Restricted
Stock Awards, Performance Share, or Performance Award.
(b) "Board" means the Board of Directors of the Corporation.
(c) "Code" means the Internal Revenue Code of 1986, as amended.
(d) "Committee" means the Committee of the Corporation's Board of
Directors which shall consist of two or more non-employee directors, within the
meaning set forth in Rule 16b-3 of the Securities Exchange Act of 1934,
appointed by the Board.
(e) "Corporation" means BANC ONE CORPORATION, a bank holding company
under the Bank Holding Company Act of 1956 headquartered in Columbus, Ohio.
(f) "Disability" means disability as determined by the Committee.
(g) "Director Stock Option" means an Option granted to an Eligible
Director. Each Director Stock Option shall be a nonqualified stock option whose
grant is not intended to fall under the provisions of Section 422A of the Code.
(h) "Eligible Director" means any statutory director of the Corporation
who is not an employee of the Corporation or any of its subsidiaries.
I-1
(i) "Fair Market Value" means the closing price of the Stock as reported
by the New York Stock Exchange on a particular date. In the event that there are
no Stock transactions on such date, the Fair Market Value shall be determined as
of the immediately preceding date on which there were Stock transactions.
(j) "Option" means the right to purchase Stock at a stated price for a
specified period of time. For purposes of the Plan an Option, other than a
Director Stock Option, may be either (i) an incentive stock option within the
meaning of Section 422A of the Code or (ii) a nonqualified stock option whose
grant is intended not to fall under the provisions of Section 422A.
(k) "Option Agreement" means an agreement entered into between the
Corporation and an employee or an Eligible Director in the form prescribed by
the Committee.
(l) "Option Price" means the price at which each share of Stock subject
to an Option may be purchased, determined in accordance with Section 8.4 herein.
(m) "Participant" means any individual, other than an Eligible Director,
designated by the Committee to participate in the Plan pursuant to Section 3.1
herein.
(n) "Period of Restriction" means the period during which the transfer
of shares of Restricted Stock and/or Performance Shares is restricted pursuant
to Section 10 and/or Section 11 of the Plan.
(o) "Performance Awards" means awards of cash granted to a Participant
pursuant to Section 12 of the Plan.
(p) "Performance Objective" shall mean the performance measure(s) and
the achievement goals of the Corporation or one or more of its subsidiaries set
by the Committee.
(q) "Performance Period" shall mean two or more successive fiscal years
of the Corporation with respect to which a Performance Share or Performance
Award may be earned pursuant to this Plan. Performance Periods shall begin with
the first day of the fiscal year in which a Performance Share or Performance
Award is granted. The length of a Performance Period shall be at the discretion
of the Committee. For each Performance Share and Performance Award, no more than
one Performance Period shall begin in any one fiscal year of the Corporation.
(r) "Performance Shares" means Stock granted to a Participant pursuant
to Section 11 of the Plan. Each Performance Share shall be the equivalent of one
share of Stock.
(s) "Restricted Stock" means Stock granted to a Participant pursuant to
Section 10 of the Plan.
(t) "Restricted Stock Agreement" means an agreement entered into between
the Corporation and the Employee in the form prescribed by the Committee.
(u) "Retirement," "Normal Retirement," and "Early Retirement" means
termination of employment as defined in the BANC ONE CORPORATION Retirement
Plan.
(v) "Stock" means the common stock of the Corporation, without par
value.
(w) "Stock Appreciation Right" and "SAR" means the right to receive a
cash payment from the Corporation equal to the excess of the Fair Market Value
of a share of Stock at the date of exercise over a specified price fixed by the
Committee which shall not be less than 100% of the Fair Market Value of the
Stock on the date of grant. In the case of a Stock Appreciation Right which is
granted in conjunction with an Option, the specified price shall be the Option
exercise price.
I-2
2.2 Gender and Number. Except when otherwise indicated by the context,
words in the masculine gender when used in the Plan shall include the feminine
gender, the singular shall include the plural, and the plural shall include the
singular.
SECTION 3. Eligibility and Participation
3.1 Eligibility and Participation. Participants in the Plan shall be
selected by the Committee from among those employees of the Corporation and its
subsidiaries who are recommended for participation by the Chief Executive
Officer of the Corporation and who, in the opinion of the Committee, are in a
position to contribute materially to the Corporation's continued growth,
development, and long-term financial success. Persons serving on the Committee
shall not be eligible to be a Participant.
3.2 Eligible Directors. Eligible Directors are entitled to participate
in the Plan solely with respect to the grant of Director Stock Options and may
not receive any other Award under the Plan. The selection of Eligible Directors
is not subject to the discretion of the Committee. Persons serving on the
Committee who are Eligible Directors may receive grants of Director Stock
Options.
SECTION 4. Administration
4.1 Administration. The Committee shall be responsible for the
administration of the Plan. The Committee, by majority action thereof, is
authorized to interpret the Plan, to prescribe, amend, and rescind rules and
regulations relating to the Plan, to provide for conditions and assurances
deemed necessary or advisable to protect the interests of the Corporation, and
to make all other determinations necessary or advisable for the administration
of the Plan, but only to the extent not contrary to the explicit provisions of
the Plan. Determinations, interpretations, or other actions made or taken by the
Committee pursuant to the provisions of the Plan shall be final and binding and
conclusive for all purposes and upon all persons whomsoever.
SECTION 5. Stock Subject to Plan
5.1 Number. The total number of shares of Stock subject to issuance
under the Plan may not exceed six million three hundred thousand (6,300,000)
subject to adjustment upon occurrence of any of the events indicated in
Subsection 5.3. Of this total number, up to six million (6,000,000) shares of
Stock may be granted in Restricted Stock or in common stock as a payout medium
to Participants under the Plan and up to three hundred thousand (300,000) shares
may be issued pursuant to the exercise of Director Stock Options. The shares to
be delivered under the Plan may consist, in whole or in part, of authorized but
unissued Stock or issued stock reacquired and held as treasury Stock not
reserved for any other purpose.
5.2 Unused Stock. In the event any shares of Stock that are subject to
an Option which, for any reason, expires or is terminated unexercised as to such
shares, or any shares of Stock subject to a Restricted Stock or Performance
Share grant made under the Plan are reacquired by the Corporation pursuant to
the Plan, such shares again shall become available for issuance under the Plan
except as provided in Section 9.4.
5.3 Adjustment in Capitalization. In the event that subsequent to the
date of adoption of the Plan by the Board the shares of Stock should as a result
of a stock split, stock dividend, combination or exchange of shares, exchange
for other securities, reclassification, reorganization, redesignation, merger,
consolidation, recapitalization or other such change, be increased or decreased
or changed into or exchanged for a different number or kind of shares of Stock
or other securities of the Corporation or of another corporation, then (a) there
shall automatically be substituted for each share of Stock subject to an
unexercised Option (in whole or in part) granted under the Plan and each share
of Stock available for additional grants of Options under the Plan the number
and kind of shares of Stock or other securities into which each outstanding
share of Stock shall be changed or for which each such shares shall be
exchanged, (b) the Option Price shall
I-3
be increased or decreased proportionately so that the aggregate purchase price
for the securities subject to the Option shall remain the same as immediately
prior to such event and (c) the Board shall make such other adjustments to the
securities subject to Options and the provisions of the Plan and Option
Agreements as may be appropriate and equitable. Any such adjustment may provide
for the elimination of fractional shares. In such event, the Committee also
shall have discretion to make appropriate adjustments in the number and type of
shares subject to Restricted and Performance Share grants then outstanding under
the Plan pursuant to the terms of such grants or otherwise.
SECTION 6. Stock Appreciation Rights Subject to Plan
6.1 Unexercised Rights. In the event any Stock Appreciation Rights
expire unexercised, such Stock Appreciation Rights again shall become available
for issuance under the Plan.
6.2 Adjustment in Capitalization. In the event of any change in the
outstanding shares of Stock that occurs after ratification of the Plan by the
shareholders of the Corporation by reason of a Stock dividend or split,
recapitalization, merger, consolidation, combination, exchange of shares, or
other similar corporate change, the Committee shall make appropriate adjustments
in the number of outstanding Stock Appreciation Rights and the related grant
values.
SECTION 7. Duration of Plan
The Plan shall remain in effect, subject to the Board's right to earlier
terminate the Plan pursuant to Section 16 hereof, until all Stock subject to it
shall have been purchased or acquired pursuant to the provisions hereof.
Notwithstanding the foregoing, no Option, Stock Appreciation Right, Restricted
Stock, Performance Share or Performance Award may be granted under the Plan on
or after the tenth (10th) anniversary of the Plan's effective date.
SECTION 8. Stock Options
8.1 Grant of Options Other than Director Stock Options. Subject to the
provisions of Sections 5 and 7, Options other than Director Stock Options may be
granted to Participants at any time and from time to time as shall be determined
by the Committee. The Committee shall have complete discretion in determining
the number of Options granted to each Participant. The Committee also shall
determine, whether an Option is to be an incentive stock option within the
meaning of Code Section 422A, or a nonqualified stock option whose grant is
intended not to fall within the provisions of Section 422A. However, in no event
shall the aggregate Fair Market Value (determined at the date of grant) of the
stock for which incentive stock options are first exercisable in a particular
calendar year exceed $100,000, computed in accordance with Section 422A(b)(7) of
the Code. An incentive stock option shall not be granted to any person who owns,
directly or indirectly, Stock possessing more than 10% of the total combined
voting power of all classes of Stock of the Corporation. Nothing in this Section
8 shall be deemed to prevent the grant of nonqualified stock options in excess
of the maximum established by Section 422A of the Code.
8.2 Grant of Director Stock Options. Subject to the provisions of
Sections 5 and 7, Director Stock Options shall be granted to Eligible Directors
as provided in this Section 8.2 and the Committee shall have no discretion with
respect to any matters set forth in this Section 8.2.
(a) Vesting. Each Director Stock Option shall become exercisable on and
after the first anniversary of the date of the grant.
(b) Number of Shares. Director Stock Options shall be granted as
follows:
(i) Each Eligible Director on the effective date of the Plan shall
automatically be granted a Director Stock Option for 3,000 shares of Stock.
I-4
(ii) Each other person who is elected or appointed to serve as a
director of the Corporation after the effective date of the Plan and who is an
Eligible Director shall, upon his initial appointment or election as an Eligible
Director, automatically be granted a Director Stock Option for 3,000 shares of
Stock;
(iii) Commencing immediately after the adjournment of the
Corporation's annual meeting of shareholders (an "Annual Meeting") in
1990 and immediately after the adjournment of the Annual Meeting each year
thereafter, each Eligible Director who was an Eligible Director immediately
preceding such Annual Meeting and who has been elected as a director at such
Annual Meeting shall automatically be granted a Director Stock Option for 1,000
shares of Stock if, but only if, the return on common equity of the Corporation
as set forth in the Corporation's annual report to shareholders for the
immediately preceding fiscal year is equal to or greater than 10%.
8.3 Option Agreement. Each Option shall be evidenced by an Option
Agreement that shall specify the type of Option granted, the Option Price, the
duration of the Option, the number of shares of Stock to which the Option
pertains, and such other provisions as the Committee shall determine.
8.4 Option Price. No Option granted pursuant to the Plan shall have an
Option Price that is less than the Fair Market Value of the Stock on the date
the Option is granted.
8.5 Duration of Options. Each Option, other than Director Stock Options,
shall expire at such time as the Committee shall determine at the time it is
granted; provided, however, that no Option, other than incentive stock options
within the meaning of Section 422A of the Code, shall be exercisable later than
twenty years and one day from the date of its grant and no such incentive stock
option shall be exercisable more than ten years and one day from the date of
grant. No Director Stock Option may be exercisable later than twenty years and
one day from the date of its grant.
8.6 Exercise of Options. Options granted under the Plan other than
Director Stock Options shall be exercisable at such times and be subject to such
restrictions and conditions as the Committee shall in each instance approve,
which need not be the same for all Participants.
8.7 Payment. The Option Price upon exercise of any Option shall be
payable to the Corporation in full either (i) in cash or its equivalent, or (ii)
by tendering shares of previously acquired Stock having a Fair Market Value at
the time of exercise equal to the total Option Price, or (iii) by a combination
of (i) and (ii). The proceeds from such a payment shall be added to the general
funds of the Corporation and shall be used for general corporate purposes. As
soon as practicable after receipt of full payment (including the necessary tax
withholding), the Corporation shall deliver to the Participant or the Eligible
Director, as the case may be, Stock certificates in an appropriate amount based
upon the number of Options exercised, issued in the name of the Participant or
the Eligible Director, as the case may be.
8.8 Restrictions on Stock Transferability. The Committee shall impose
such restrictions on any shares of Stock acquired pursuant to the exercise of an
Option under the Plan as it may deem advisable, including, without limitation,
restrictions under applicable Federal securities law, under the requirements of
any stock exchange upon which such shares of Stock are then listed and under any
blue sky or state securities laws applicable to such shares.
8.9 Termination of Employment. If the employment of a Participant
terminates, other than pursuant to paragraphs (a) through (d) of this Section,
all non-vested awards shall be canceled immediately, unless the Award Agreement
provides otherwise. Vested awards shall remain subject to the terms of the Award
Agreement, except to the extent modified by the provisions of paragraphs (a)
through (d) of this Section.
(a) Retirement Under the Retirement Plan. When a Participant's
employment terminates as a result of Retirement with management approval in
accordance with the terms of the BANC ONE CORPORATION Retirement Plan, the
Committee (in the form of an amended Award Agreement or otherwise) may permit
awards to continue in effect beyond the date of Retirement in accordance with
the applicable Award Agreement and the exercisability and vesting of any award
may be accelerated.
I-5
(b) Resignation in the Best Interest of the Corporation. When a
Participant resigns from the Corporation and, in the judgment of the chief
executive officer or other senior officer designated by the Committee, the
acceleration and/or continuation of outstanding awards would be in the best
interest of the Corporation, the Committee may (i) authorize, where appropriate,
the acceleration and/or continuation of all or any part of awards granted prior
to such termination, and (ii) permit the exercise, vesting and payment of such
awards for such period as may be set forth in the applicable Award Agreement,
subject to earlier cancellation pursuant to Section 8.10 or at such time as the
Committee shall deem the continuation of all or any of the Participant's awards
to be not in the Corporation's best interest.
(c) Death or Disability of a Participant.
(i) In the event of a Participant's death, the Participant's estate
or beneficiaries shall have a period specified in the Award Agreement within
which to receive or exercise any outstanding award held by the Participant under
such terms as may be specified in the applicable Award Agreement.
(ii) In the event a participant is deemed by the Corporation to be
disabled and eligible for benefits pursuant to the terms of the Corporation's
Long-Term Disability Plan, any successor plan, or any predecessor plan, awards
and rights to any such awards may be paid to or exercised by the Participant, if
legally competent, or a committee or other legally designated guardian or
representative if the Participant is legally incompetent by virtue of such
disability.
(iii) After the death or disability of a Participant, the Committee
may in its sole discretion at any time (1) terminate restrictions in Award
Agreements; (2) accelerate any or all installments and rights; and (3) instruct
the Corporation to pay the total of any accelerated payments in a lump sum to
the Participant, the Participant's estate, beneficiaries or representative -
notwithstanding that, in the absence of such termination of restrictions or
acceleration of payments, any or all of the payments due under the awards may
ultimately have become payable to other beneficiaries.
(iv) In the event of uncertainty as to interpretation of or
controversies concerning this paragraph (c) of this Section 8.9, the Committee's
determination shall be binding and conclusive.
(d) Sale of a Subsidiary. In the event of the sale of a subsidiary, or
any portion thereof, the Committee may in its sole discretion at any time (1)
terminate restrictions in Award Agreements; (2) accelerate any or all
installments and rights; and (3) instruct the Corporation to pay the total of
accelerated payments in a lump sum to affected Participants.
8.10 Cancellation and Rescission of Awards. Unless the Award Agreement
specifies otherwise, the Committee may cancel any unexpired, unpaid, or deferred
awards at any time if the Participant is in violation of or not in compliance
with all other applicable provisions of the Plan, or the applicable Award
Agreement.
8.11 Termination of Eligible Director Shares. In the event that an
Eligible Director ceases to be an Eligible Director for any reason, the rights
under any then outstanding Director Stock Option granted pursuant to the Plan
which are exercisable as of the date he ceases to be an Eligible Director shall
terminate upon the date determined as provided in Section 8.5, above, or three
months after such cessation date, whichever first occurs; provided, however,
that if he ceases to be an Eligible Director by reason of death, the three-month
period shall be extended to the sooner of twelve (12) months and five (5) days
or the expiration date of the Director Stock Option.
8.12 Nontransferability of Options. No Option granted under the Plan may
be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated,
otherwise than by will or by the laws of descent and distribution. All Options
granted to a Participant or an Eligible Director under the Plan shall be
exercisable during his lifetime only by such Participant or Eligible Director.
SECTION 9. Stock Appreciation Rights
I-6
9.1 Grant of Stock Appreciation Rights. Subject to the provisions of
Sections 6 and 7, Stock Appreciation Rights may be granted to Participants at
any time and from time to time as shall be determined by the Committee. An SAR
may be granted, in the discretion of the Committee, in any of the following
forms:
(a) In lieu of Options,
(b) In addition to Options,
(c) Upon lapse of Options, or
(d) Independent of Options.
9.2 Exercise of SARs in Lieu of Options. SARs granted in lieu of Options
may be exercised for all or part of the shares of Stock subject to the related
Option upon the surrender of the right to exercise an equivalent number of
Options. The SAR may be exercised only with respect to the shares of Stock for
which its related Option is then exercisable. SARs granted in lieu of Options
will lapse in the event and to the extent that the related Option is exercised.
9.3 Exercise of SARs in Addition to Options. SARs granted in addition to
Options shall be deemed to be exercised upon the exercise of the related
Options.
9.4 Exercise of SARs Upon Lapse of Options. SARs granted upon lapse of
Options shall be deemed to have been exercised upon the lapse of the related
Options as to the number of shares of Stock subject to the Options.
9.5 Exercise of SARs Independent of Options. SARs granted independent of
Options may be exercised upon whatever terms and conditions the Committee, in
its sole discretion, imposes upon the SARs.
9.6 Payment of SAR Amount. Upon exercise of the SAR, the holder shall be
entitled to receive payment of an amount (subject to Section 9.8 below)
determined by multiplying:
(a) The difference between the Fair Market Value of a share of
Stock at the date of exercise over the price fixed by the Committee at
the date of grant, by
(b) The number of shares with respect to which the SAR is
exercised.
9.7 Form and Timing of Payment. At the discretion of the Committee,
payment for SARs may be made in cash or stock, or in a combination thereof. If
payment is made in Stock, the value of such Stock shall be the Fair Market Value
determined as of the date of exercise.
9.8 Limit on Appreciation. At the time of grant, the Committee may
establish, in its sole discretion, a maximum amount per share which will be
payable upon exercise of an SAR.
9.9 Rule 16b-3 Requirements. Notwithstanding any other provision of the
Plan, the Committee may impose such conditions on exercise of an SAR (including,
without limitation, the right of the Committee to limit the time of exercise to
specified periods) as may be required to satisfy the requirements of Rule 16b-3
(or any successor rule), under the Securities Exchange Act of 1934.
9.10 Term of SAR. The term of an SAR granted under the Plan shall not
exceed ten years and one day.
9.11 Termination of Employment. In the event the employment of a
Participant is terminated by reason of Death, Disability, Retirement, or any
other reason, any SARs outstanding shall terminate in the same manner as
specified for Options under Sections 8.9 and 8.10 herein.
I-7
9.12 Nontransferability of SARs. No SAR granted under the Plan may be
sold, transferred, pledged, assigned, or otherwise alienated or hypothecated,
otherwise than by will or by the laws of descent and distribution. Further, all
SARs granted to a Participant under the Plan shall be exercisable during his
lifetime only by such Participant.
SECTION 10. Restricted Stock Awards.
10.1 Grant of Restricted Stock. Subject to the provisions of Sections 5
and 7, the Committee, at any time and from time to time, may award shares of
Restricted Stock under the Plan to such Participants and in such amounts as it
shall determine. Each Restricted Stock Award shall be evidenced by a Restricted
Stock Agreement that shall specify the Period or Periods of Restriction, the
number of Restricted Stock shares awarded, and such other provisions as the
Committee shall determine.
10.2 Transferability. Except as provided in this Section 10, the shares
of Restricted Stock awarded hereunder may not be sold, transferred, pledged,
assigned, or otherwise alienated or hypothecated for such period of time as
shall be determined by the Committee and shall be specified in the Restricted
Stock Agreement, or upon earlier satisfaction of other conditions as specified
by the Committee in its sole discretion and set forth in the Restricted Stock
Agreement.
10.3 Other Restrictions. The Committee shall impose such other
restrictions on any shares of Restricted Stock awarded pursuant to the Plan as
it may deem advisable including, without limitation, restrictions under
applicable federal or state securities or tax laws, and may legend the
certificates representing Restricted Stock to give appropriate notice of such
restrictions.
10.4 Certificate Legend. In addition to any legends placed on
certificates pursuant to Section 10.3 hereof, each certificate representing
shares of Restricted Stock granted pursuant to the Plan shall bear a legend
which is comparable to the following:
"The sale or other transfer of this certificate or the shares of stock
represented by this certificate, whether voluntary, involuntary, or by operation
of law, is subject to certain restrictions on transfer and other terms and
conditions set forth in the BANC ONE CORPORATION 1989 Stock Incentive Plan and a
Restricted Stock Agreement dated , 19 . A copy of the Plan and such Restricted
Stock Agreement may be obtained from the Secretary of BANC ONE CORPORATION, 100
East Broad Street, Columbus, Ohio 43271-0261."
10.5 Removal of Restrictions. Except as otherwise provided in this
Section 10, shares of Restricted Stock covered by each Restricted Stock Award
made under the Plan shall become freely transferable by the Participant after
the last day of the Period of Restriction. Once the shares are released from the
restrictions, the Participant shall be entitled to have the legend required by
Section 10.4 removed from his Stock certificates.
10.6 Voting Rights. During the Period of Restriction, Participants
holding shares of Restricted Stock awarded hereunder may exercise full voting
rights with respect to those shares.
10.7 Dividends and Other Distributions. During the Period of
Restriction, Participants holding shares of Restricted Stock awarded hereunder
shall be entitled to receive all dividends and other distributions paid with
respect to those shares while they are so held. If any such dividends or
distributions are paid in shares of Stock, the shares shall be subject to the
same restrictions on transferability as the shares of Restricted Stock with
respect to which they were paid.
10.8 Termination of Employment. If the employment of a Participant
terminates other than pursuant to paragraphs (a) through (d) of this Section,
all non-vested awards shall be canceled immediately, unless the Award Agreement
provides otherwise. Vested awards shall remain subject to the terms of the Award
Agreement, except to the extent modified by the provisions of paragraphs (a)
through (d) of this Section.
I-8
(a) Retirement Under the Retirement Plan. When a participant's
employment terminates as a result of Retirement with management approval in
accordance with the terms of the BANC ONE CORPORATION Retirement Plan, the
Committee (in the form of an amended Award Agreement or otherwise) may permit
awards to continue in effect beyond the date of Retirement in accordance with
the applicable Award Agreement and the exercisability and vesting of any Award
may be accelerated.
(b) Resignation in the Best Interest of the Corporation. When a
Participant resigns from the Corporation and, in the judgment of the chief
executive officer or other senior officer designated by the Committee, the
acceleration and/or continuation of outstanding awards would be in the best
interest of the Corporation, the Committee may (i) authorize, where appropriate,
the acceleration and/or continuation of all or any part of awards granted prior
to such termination, and (ii) permit the exercise, vesting and payment of such
awards for such period as may be set forth in the applicable Award Agreement,
subject to earlier cancelation pursuant to Section 10.9 or at such time as the
Committee shall deem the continuation of all or any of the Participant's awards
to be not in the Corporation's best interest.
(c) Death or Disability of a Participant.
(i) In the event of a Participant's death, the Participant's
estate or beneficiaries shall have a period specified in the Award Agreement
within which to receive or exercise any outstanding award held by the
Participant under such terms as may be specified in the applicable Award
Agreement.
(ii) In the event a participant is deemed by the Corporation to
be disabled and eligible for benefits pursuant to the terms of the Corporation's
Long-Term Disability Plan, any successor plan, or any predecessor plan, awards
and rights to any such awards may be paid to or exercised by the Participant, if
legally competent, or a committee or other legally designated guardian or
representative if the Participant is legally incompetent by virtue of such
disability.
(iii) After the death or disability of a Participant, the
Committee may in its sole discretion at any time (1) terminate restrictions in
Award Agreements; (2) accelerate any or all installments and rights; and (3)
instruct the Corporation to pay the total of any accelerated payments in a lump
sum to the Participant, the Participant's estate, beneficiaries or
representative - notwithstanding that, in the absence of such termination of
restrictions or acceleration of payments, any or all of the payments due under
the awards may ultimately have become payable to other beneficiaries.
(iv) In the event of uncertainty as to interpretation of or
controversies concerning this paragraph (c) of this Section 10.8, the
Committee's determination shall be binding and conclusive.
(d) Sale of a Subsidiary. In the event of the sale of a subsidiary, or
any portion thereof, the Committee may in its sole discretion at any time (1)
terminate restrictions in Award Agreements; (2) accelerate any or all
installments and rights; and (3) instruct the Corporation to pay the total of
accelerated payments in a lump sum to affected Participants.
10.9 Cancellation and Rescission of Awards. Unless the Award Agreement
specifies otherwise, the Committee may cancel any unexpired, unpaid, or deferred
awards at any time if the Participant is in violation of or not in compliance
with all other applicable provisions of the Plan, or the applicable Award
Agreement.
SECTION 11. Performance Shares
11.1 Grant of Performance Shares. Subject to the provisions of Sections
5 and 7, the Committee, at any time and from time to time, may grant Performance
Shares to such Participants and in such amounts as it shall determine. Each
grant of Performance Shares shall be in writing.
I-9
11.2 Performance Period. The period over which Performance Shares may be
earned shall begin on the first day of the fiscal year in which a grant occurs.
The length of the Performance Period for each grant shall be determined by the
Committee, in its sole discretion, but shall not be less than two years.
11.3 Performance Measurement. At the beginning of each Performance
Period, Performance Objectives shall be established by the Chief Executive
Officer of the Corporation subject to Committee approval. The degree of
attainment of such Performance Objectives shall determine the number of the
Performance Shares payable at the end of the Performance Period, in accordance
with a schedule established by the Chief Executive Officer and approved by the
Committee at the beginning of the Performance Period.
The Committee may adjust the Performance Objectives during the
Performance Period if it is determined that changes in business conditions have
materially and unduly influenced the Corporation's ability to meet the
Performance Objectives.
11.4 Payment of Awards. All payments pursuant to Performance Share
grants shall be made as soon as practicable following the end of the applicable
Performance Period based upon the degree of attainment of the Performance
Objectives. Payments shall be made in Stock. The Committee shall review all
calculations of actual Performance Objective accomplishments and shall make any
adjustments in the computations to recognize material extraordinary or
nonrecurring items if, in the judgment of the Committee, the effect of such
adjustments is equitable and in conformity with the purposes of the Plan.
11.5 Termination of Employment Due to Retirement. In the event that a
Participant terminates his employment with the Corporation because of Normal
Retirement during the Performance Period, the Participant shall be entitled to a
prorated award of Performance Shares as of the most recently completed full
fiscal year of the Performance Period. Payments of Performance Shares determined
in this manner shall be multiplied by a fraction, the numerator of which is the
number of full months which have elapsed since the commencement of the
Performance Period, and the denominator of which is the number of full months in
the particular Performance Period. Payment of Performance Shares in this case
shall be made as soon as practicable following the end of the fiscal year of
termination.
In the event that a Participant terminates his employment with the
Corporation because of Early Retirement, any Performance Shares outstanding at
the date of such Early Retirement automatically shall be forfeited; provided,
however, that the Committee may, in its sole discretion, determine a prorated
value for the Participant's then outstanding Performance Shares as it deems
appropriate. Payment of Performance Shares in this case shall be made as soon as
practicable following the end of the fiscal year of termination.
11.6 Termination of Employment Due to Death or Disability. In the event
a Participant terminates his employment with the Corporation because of Death or
Disability during the Performance Period, the Participant shall be entitled to a
prorated award of Performance Shares as of the most recently completed full
fiscal year of the Performance Period. Payments of Performance Shares determined
in this manner shall be multiplied by a fraction, the numerator of which is the
number of full months which have elapsed since the commencement of the
Performance Period, and the denominator of which is the number of full months in
the particular Performance Period. Payment of Performance Shares in this case
shall be made as soon as practicable following the end of the fiscal year of
termination.
11.7 Termination of Employment for Reasons Other Than Death, Disability
or Retirement. In the event that a Participant terminates his employment with
the Corporation for any reason other than those set forth in Sections 1 1.5 and
11.6 hereof during the Performance Period, then any Performance Shares still
outstanding at the date of such termination automatically shall be forfeited;
provided, however, that, in the event of an involuntary termination of the
employment of a Participant by the Corporation the Committee may, in its sole
discretion, waive the automatic forfeiture of any or all such Performance Shares
as it deems appropriate, and pay a prorated award.
11.8 Nontransferability of Performance Shares. No Performance Shares
granted under the Plan may be sold, transferred, pledged, assigned, or otherwise
alienated or hypothecated, otherwise than by will or by the laws of descent
I-10
and distribution until the termination of the applicable Performance Period. All
rights with respect to Performance Shares granted to a Participant under the
Plan shall be exercisable during his lifetime only by such Participant.
SECTION 12. Performance Awards
12.1 Grant of Performance Awards. Subject to the provisions of Sections
5 and 7, the Committee, at any time and from time to time, may grant Performance
Awards under the Plan to Such Participants and in such amounts as it shall
determine. Each grant of Performance Awards shall be in writing.
12.2 Performance Period. The period over which Performance Awards may be
earned shall begin on the first day of the fiscal year in which a grant occurs.
The length of the Performance Period for each grant shall be determined by the
Committee in its sole discretion but shall not be less than two years.
12.3 Performance Measurement. At the beginning of each Performance
Period, Performance Objectives shall be established by the Chief Executive
Officer of the Corporation subject to Committee approval. The degree of
attainment of such Performance Objectives shall determine the value of the
Performance Awards at the end of the Performance Period, in accordance with a
schedule established by the Chief Executive Officer and approved by the
Committee at the beginning of the Performance Period.
The Committee may adjust the Performance Objectives during the
Performance Period if it is determined that changes in business conditions have
materially and unduly influenced the Corporation's ability to meet the
Performance Objectives.
12.4 Payment of Awards. All payments pursuant to Performance Award
grants shall be made as soon as practicable following the end of the applicable
Performance Period based upon the degree of attainment of the Performance
Objectives. Payments shall be made in cash. The Committee shall review all
calculations of actual Performance Objective accomplishments and shall make any
adjustments in the computations to recognize material extraordinary or
nonrecurring items if, in the judgment of the Committee, the effect of such
adjustments is equitable and in conformity with the purposes of the Plan.
12.5 Termination of Employment Due to Retirement. In the event that a
Participant terminates his employment with the Corporation because of Normal
Retirement during the Performance Period, the Participant shall be entitled to a
prorated award of Performance Awards as of the most recently completed full
fiscal year of the Performance Period. Payment of Performance Awards determined
in this manner shall be multiplied by a fraction, the numerator of which is the
number of full months which have elapsed since the commencement of the
Performance Period, and the denominator of which is the number of full months in
the particular Performance Period. Payment of Performance Awards in this case
shall be made as soon as practicable following the end of the fiscal year of
termination.
In the event that a Participant terminates his employment with the Corporation
because of Early Retirement, the Committee may, in its sole discretion,
determine a prorated value for the Participant's then outstanding Performance
Awards as it deems appropriate. Payment of Performance Awards in this case shall
be made as soon as practicable following the end of the fiscal year of
termination.
12.6 Termination of Employment Due to Death or Disability. In the event
a Participant terminates his employment with the Corporation because of Death or
Disability during the Performance Period, the Participant shall be entitled to a
prorated award of Performance Awards as of the most recently completed full
fiscal year of the Performance Period. Payments of Performance Awards determined
in this manner shall be multiplied by a fraction, the numerator of which is the
number of full months which have elapsed since the commencement of the
Performance Period, and the denominator of which is the number of full months in
the particular Performance Period. Payment of Performance Awards in this case
shall be made as soon as practicable following the end of the fiscal year of
termination.
I-11
12.7 Termination of Employment for Reasons Other Than Death, Disability,
or Retirement. In the event that a Participant terminates his employment with
the Corporation for any reason other than those set forth in Sections 12.5 and
12.6 hereof during the Performance Period, then any Performance Awards still
outstanding at the date of such termination automatically shall be forfeited;
provided, however, that in the event of an involuntary termination of the
employment of a Participant by the Corporation the Committee may, in its sole
discretion, waive the automatic forfeiture of any or all such Performance Awards
as it deems appropriate and pay a prorated award.
12.8 Nontransferability of Performance Awards. No Performance Awards
granted under the Plan may be sold, transferred, pledged, assigned, or otherwise
alienated or hypothecated, otherwise than by will or by the laws of descent and
distribution until the termination of the applicable Performance Period. All
rights with respect to Performance Awards granted to a Participant under the
Plan shall be exercisable during his lifetime only by such Participant.
SECTION 13. Beneficiary Designation
Each Participant under the Plan may, from time to time, name any
beneficiary or beneficiaries (who may be named contingently or successively) to
whom any benefit under the Plan is to be paid in case of his death before he
receives any or all of such benefit. Each designation will revoke all prior
designations by the same Participant, shall be in a form prescribed by the
Committee, and will be effective only when filed by the Participant in writing
with the Committee during his lifetime. In the absence of any such designation,
benefits remaining unpaid at the Participant's death shall be paid to his
estate.
SECTION 14. Rights of Employees
14.1 Employment. Nothing in the Plan shall interfere with or limit in
any way the right of the Corporation to terminate any Participant's employment
at any time, nor confer upon any Participant any right to continue in the employ
of the Corporation.
14.2 Participation. No employee shall have a right to be selected as a
Participant, or, having been so selected, to be selected again as a Participant.
SECTION 15. Change in Control
15.1 In General. In the event that (a) the Corporation is a party to a
merger or consolidation agreement, (b) the Corporation is a party to an
agreement to sell substantially all of its assets, or (c) there is a change in
control of the Corporation as defined in Section 15.3 below, the Committee may,
in its sole discretion, provide that all outstanding Awards shall become 100%
vested, that all outstanding Options and SARs shall become immediately
exercisable and that any Period of Restriction shall immediately lapse.
Performance Share and Performance Award values shall be computed as if the most
recently completed full fiscal year was the end of the Performance Period,
except that no Performance Share or Performance Award payable under this
Section, except as limited by Section 15.2 hereof, may be less than would have
been paid had the Corporation achieved 100% of its Performance Objectives.
15.2 Limitation on Payments. If the receipt of any payment under this
Section by any Participant shall, in the opinion of independent tax counsel of
recognized standing selected by the Corporation, result in the payment by such
Participant of any excise tax provided for in Section 280G and Section 4999 of
the Code, then the amount of such payment shall be reduced to the extent
required, in the opinion of independent tax counsel, to prevent the imposition
of such excise tax.
15.3 Definition. For purposes of the Plan, a "change in control" shall
mean any of the following events:
I-12
(i) The acquisition of "beneficial ownership", as defined in
Rule 13d-3 promulgated under the Securities Exchange Act of 1934 (the "Exchange
Act"), of twenty percent (20%) or more of the total voting capital Stock of the
Corporation then issued and outstanding, by any person, or "group", as defined
in Section 13(d)(3) of the Exchange Act, or
(ii) Individuals who were members of the Board of the
Corporation immediately prior to a meeting of the shareholders of the
Corporation involving a contest for the election of directors do not constitute
a majority of the Board immediately following such election, unless the election
of such new directors was recommended to the shareholders by management of the
Corporation.
The Board has final authority to determine the exact date on which a
change in control has been deemed to have occurred under (i) and (ii) above.
SECTION 16. Amendment, Modification, and Termination of Plan
The Board may at any time terminate and, from time to time, may amend or
modify the Plan, provided, however, that no such action of the Board, without
approval of the shareholders, may:
(a) Increase the total amount of Stock which may be issued under the
Plan, except as provided in Subsections 5.1 and 5.3 of the Plan.
(b) Change the provisions of the Plan regarding the Option Price except
as permitted by Subsection 5.3.
(c) Materially increase the cost of the Plan or materially increase the
benefits to Participants.
(d) Extend the period during which Options, Stock Appreciation Rights,
Restricted Stock, Performance Shares, or Performance Awards may be granted.
(e) Extend the maximum period after the date of grant during which
Options may be exercised.
No amendment, modification, or termination of the Plan shall in any
manner adversely affect any Options, Stock Appreciation Rights, Restricted
Stock, Performance Shares, or Performance Awards theretofore granted under the
Plan, without the consent of the Participant or the Eligible Director, as the
case may be.
SECTION 17. Tax Withholding
(a) The Corporation shall have the right to withhold from any
payments made under the Plan or to collect as a condition of payment, any taxes
required by law to be withheld. At any time when a Participant or an Eligible
Director, as the case may be, is required to pay to the Corporation an amount
required to be withheld under applicable income tax laws In connection with a
distribution of common stock or upon exercise of an Option or SAR, the
Participant or an Eligible Director, as the case may be, may satisfy this
obligation in whole or in part by electing (the "Election") to have the
Corporation withhold from the distribution shares of common stock having a value
equal to the amount required to be withheld. The value of the shares to be
withheld shall be based on the Fair Market Value of the common stock on the date
that the amount of tax to be withheld shall be determined ("Tax Date").
(b) Each Election must be made prior to the Tax Date. The
Committee may disapprove of any Election, may suspend or terminate the right to
make Elections, or may provide with respect to any grant that the right to make
Elections shall not apply to such Grant. An Election is irrevocable.
I-13
SECTION 18. Indemnification
Each person who is or shall have been a member of the Committee or of
the Board shall be indemnified and held harmless by the Corporation against and
from any loss, cost, liability, or expense that may be imposed upon or
reasonably incurred by him in connection with or resulting from any claim,
action, Suit, or proceeding to which he may be a party or in which he may be
involved by reason of any action taken or failure to act under the plan and
against and from any and all amounts paid by him in settlement thereof, with the
Corporation's approval, or paid by him in satisfaction of any judgment in any
such action, suit, or proceeding against him, provided he shall give the
Corporation an opportunity, at its own expense, to handle and defend the same
before he undertakes to handle and defend it on his own behalf. The foregoing
right of Indemnification, shall not be exclusive of any other rights of
Indemnification to which such persons may be entitled under the Corporation's
Articles of Incorporation or Code of Regulations, as a matter of law, or
otherwise, or any power that the Corporation may have to indemnify them or hold
them harmless.
SECTION 19. Requirements of Law
19.1 Requirements of Law. The granting of Options, Stock Appreciation
Rights, Restricted Stock, Performance Shares, or performance Awards, and the
issuance of shares of Stock upon the exercise of an Option shall be subject to
all applicable laws, rules, and regulations, and to such approvals by any
governmental agencies or national securities exchanges as may be required.
19.2 Governing Law. The Plan, and all agreements hereunder, shall be
construed in accordance with and be governed by the laws of the State of Ohio.
Amended:
Oct., 1996 - Section 2 - Definition of Committee
Sections 8.9, 8.10 & 10.8 - Matters re: Termination of Employment
Section 17(c) Deleted
Apr., 1992 - Section 5.1 Stock Subject to Plan Increased
|
I-14
Exhibit 10.31
REVISED AND RESTATED
BANC ONE CORPORATION
1995 STOCK INCENTIVE PLAN
1. PURPOSE
The purpose of the BANC ONE CORPORATION 1995 Stock Incentive Plan is to
provide incentives and rewards for Employees and Eligible Directors of the
Corporation and its Subsidiaries (i) to support the execution of the
Corporation's business and human resource strategies and the achievement of its
goals and (ii) to associate the interests of Employees and Eligible Directors
with those of the Corporation's shareholders.
2. DEFINITIONS
"Award" includes, without limitation, stock options (including incentive
stock options under Section 422 of the Code and Director Stock Options), stock
appreciation rights, restricted and performance shares, restricted and
performance share units, Performance Stock Awards, dividend or equivalent
rights, or other awards that are valued in whole or in part by reference to, or
are otherwise based on, the Common Stock ("other Common Stock-based Awards"),
all on a stand alone, combination or tandem basis, as described in or granted
under this Plan.
"Award Agreement" means a written agreement entered into between the
Corporation and a Participant setting forth the terms and conditions of an Award
made to such Participant under this Plan, in the form prescribed by the
Committee.
"Board" means the Board of Directors of the Corporation.
"Change of Control" shall have the meaning specified in Section 12(b).
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Committee" means the Committee appointed by the Board, each member of
which shall be a "non-employee director" within the meaning of Rule 16b-3 under
the Exchange Act and shall be an "outside director" within the meaning of
Section 162(m) of the Code. The Committee shall be composed of no fewer than the
minimum number of disinterested persons as may be required by Rule 16b-3.
"Common Stock" means the common stock of the Corporation, without par
value.
"Corporation" means BANC ONE CORPORATION, a bank holding company under the
Bank Holding Company Act of 1956 headquartered in Columbus, Ohio.
"Director Stock Option" means the right, granted to an Eligible Director,
to purchase Common Stock at a stated price for a specified period of time. Each
Director Stock Option shall be a nonqualified stock option whose grant is not
intended to comply with the requirements of Section 422 of the Code or any
successor Section as it may be amended from time to time.
"Eligible Director" means any statutory director of the Corporation who is
not an employee of the Corporation or any Subsidiary.
"Employee" means an employee of the Corporation or a Subsidiary.
-1-
"Employee Award" means an Award (other than a Director Stock Option) to an
Employee under this Plan.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fair Market Value" means the closing price of the Common Stock as reported
on the New York Stock Exchange Composite Transactions Tape on the relevant
valuation date or, if there were no Common Stock transactions on the valuation
date, on the next preceding date on which there were Common Stock transactions;
provided, however, that the Committee may specify some other definition of Fair
Market Value with respect to any particular Employee Award.
"Negative Discretion" means other factors to be applied by the Committee in
reducing the number of restricted shares to be issued pursuant to a Performance
Stock Award if the Performance Goals have been met or exceeded if, in the
Committee's sole judgment, such application is appropriate in order to act in
the best interest of the Corporation and its shareholders. The Negative
Discretion factors include, but are not limited to, the achievement of
measurable individual performance objectives established by the Committee and
communicated to the Employee in advance of the Performance Period, and
competitive pay practices.
"Participant" means an Employee or an Eligible Director who has been
granted an Award under this Plan.
"Performance Goals" means, with respect to any Performance Period,
performance goals based on any of the following criteria and established by the
Committee prior to the beginning of such Performance Period or performance goals
based on any of the following criteria and established by the Committee after
the beginning of such Performance Period that meet the requirements to be
considered pre-established performance goals under Section 162(m) of the Code:
earnings or earnings growth; return on equity, assets or investment; revenues;
expenses; stock price; market share; charge-offs; or reductions in
non-performing assets. Such Performance Goals may be particular to an Employee
or the division, department, branch, line of business, Subsidiary or other Unit
in which the Employee works, or may be based on the performance of the
Corporation generally.
"Performance Period" means the period of time designated by the Committee
applicable to a Performance Stock Award during which the Performance Goals shall
be measured.
"Performance Stock Award" shall have the meaning specified in Section 6(g).
"Plan" means this BANC ONE CORPORATION 1995 Stock Incentive Plan.
"Plan Year" means a twelve-month period beginning with January 1 of each
year.
"Reporting Person" means an officer or director of the Corporation subject
to the reporting requirements of Section 16 of the Exchange Act.
"Subsidiary" means any corporation or other entity, whether domestic or
foreign, in which the Corporation has or obtains, directly or indirectly, a
proprietary interest of more than 50% by reason of stock ownership or otherwise.
-2-
3. ELIGIBILITY
(a) Any Employee selected by the Committee is eligible to receive an
Employee Award.
(b) Eligible Directors are entitled to participate in this Plan solely
with respect to the grant of Director Stock Options and may not receive any
other Awards under this Plan. The selection of Eligible Directors is not subject
to the discretion of the Committee. Persons serving on the Committee who are
Eligible Directors may receive grants of Director Stock Options.
4. PLAN ADMINISTRATION
(a) This Plan shall be administered by the Committee. The Committee shall
periodically make determinations with respect to the participation of Employees
in this Plan and, except as otherwise required by law or this Plan, the grant
terms of Awards including vesting schedules, price, performance standards
(including Performance Goals), length of relevant performance, restriction or
option period, dividend rights, post-retirement and termination rights, payment
alternatives such as cash, stock, contingent awards or other means of payment
consistent with the purposes of this Plan, and such other terms and conditions
as the Committee deems appropriate. Except as otherwise required by this Plan,
the Committee shall have authority to interpret and construe the provisions of
this Plan and the Award Agreements and make determinations pursuant to any Plan
provision or Award Agreement which shall be final and binding on all persons.
(b) The Committee may designate persons other than its members to carry out
its responsibilities under such conditions or limitations as it may set, other
than its authority with regard to Awards granted to Reporting Persons.
5. STOCK SUBJECT TO THE PROVISIONS OF THIS PLAN
(a) The stock subject to the provisions of this Plan shall either be shares
of authorized but unissued Common Stock, shares of Common Stock held as treasury
stock or previously issued shares of Common Stock reacquired by the Corporation,
including shares purchased on the open market. Subject to adjustment in
accordance with the provisions of Section 11, and subject to Section 5(d), (i)
the total number of shares of Common Stock available for grants of Awards
(including, without limitation, Awards of restricted and performance shares) in
any Plan Year shall not exceed one percent of the outstanding Common Stock as
reported in the Corporation's Annual Report on Form 10-K for the fiscal year
ending immediately prior to such Plan Year and (ii) the total number of shares
of Common Stock available for grants of restricted and performance shares
(including restricted shares to be issued pursuant to Performance Stock Awards)
in any Plan Year shall not exceed one fourth of one percent of the outstanding
Common Stock as reported in the Corporation's Annual Report on form 10- K for
the fiscal year ending immediately prior to such Plan Year.
(b) Subject to adjustment in accordance with Section 11, and subject to
Section 5(a), (i) the total number of shares of Common Stock available for
grants of Awards in any Plan Year to any Participant shall not exceed one half
of one percent of the outstanding Common Stock as reported in the Corporation's
Annual Report on Form 10-K for the fiscal year ending immediately prior to such
Plan Year and (ii) the total number of shares of Common Stock available for
grants of restricted shares to be issued pursuant to Performance Stock Awards in
any Plan Year to any Employee shall not exceed one eighth of one percent of the
outstanding Common Stock as reported in the Corporation's Annual Report on form
10-K for the fiscal year ending immediately prior to such Plan Year.
-3-
(c) For purposes of calculating the total number of shares of Common Stock
available for grants of Awards, (i) the grant of a performance or restricted
share unit Award shall be deemed to be equal to the maximum number of shares of
Common Stock which may be issued under the Award and (ii) where the value of an
Award is variable on the date it is granted, the value shall be deemed to be the
maximum limitation of the Award. Awards payable solely in cash will not reduce
the number of shares of Common Stock available for Awards granted under this
Plan.
(d) There shall be carried forward and be available for Awards under this
Plan in each succeeding Plan Year, in addition to shares of Common Stock
available for grant under paragraph (a) of this Section 5, all of the following:
(i) any unused portion of the limit set forth in paragraph (a) of this Section 5
for the two immediately preceding Plan Years; (ii) shares of Common Stock
represented by Awards which have been canceled, forfeited, surrendered,
terminated or expire unexercised during that Plan Year or the two immediately
preceding Plan Years; (iii) the excess amount of variable Awards which become
fixed at less than their maximum limitations; (iv) authorized shares of Common
Stock as to which stock options, stock appreciation rights, restricted stock
awards, performance shares or performance awards were not granted under the BANC
ONE CORPORATION 1989 Stock Incentive Plan; and (v) shares of Common Stock under
the BANC ONE CORPORATION 1989 Stock Incentive Plan subject to stock options,
stock appreciation rights, restricted stock awards, performance shares or
performance awards which have been canceled, forfeited, surrendered, terminated
or expire unexercised during that Plan Year or the two immediately preceding
Plan Years.
6. EMPLOYEE AWARDS UNDER THIS PLAN
As the Committee may determine, the following types of Employee Awards may
be granted under this Plan to Employees on a stand alone, combination or tandem
basis:
(a) Stock Option. A right to buy a specified number of shares of Common
Stock at a fixed exercise price during a specified time, all as the Committee
may determine; provided that the exercise price of any option shall not be less
than 100% of the Fair Market Value of the Common Stock on the date of grant of
the Award.
(b) Incentive Stock Option. An award in the form of a stock option which
shall comply with the requirements of Section 422 of the Code or any successor
Section as it may be amended from time to time.
(c) Stock Appreciation Right. A right to receive the excess of the Fair
Market Value of a share of Common Stock on the date the stock appreciation right
is exercised over the Fair Market Value of a share of Common Stock on the date
the stock appreciation right was granted.
(d) Restricted and Performance Shares. A transfer of shares of Common Stock
to a Participant, subject to such restrictions on transfer or other incidents of
ownership, or subject to specified performance standards, for such periods of
time as the Committee may determine.
(e) Restricted and Performance Share Unit. A fixed or variable share or
dollar denominated unit subject to conditions of vesting, performance and time
of payment as the Committee may determine, which may be paid in shares of Common
Stock, cash or a combination of both.
(f) Dividend or Equivalent Right. A right to receive dividends or their
equivalent in value in shares of Common Stock, cash or in a combination of both
with respect to any new or previously existing Employee Award.
-4-
(g) Performance Stock Awards. A right, granted to an Employee, to receive
restricted shares (as defined in Section 6(d) hereof) that are not to be issued
to the Employee until after the end of the related Performance Period, subject
to satisfaction of the Performance Goals for such Performance Period.
(h) Other Common Stock-Based Awards. Other Common Stock-based Awards which
are related to or serve a similar function to those Employee Awards set forth in
this Section 6.
In addition to granting Employee Awards for purposes of incentive
compensation, Employee Awards may also be made in tandem with or in lieu of
current or deferred Employee compensation.
7. PERFORMANCE STOCK AWARDS.
(a) Administration. Performance Stock Awards may be granted to Employees
either alone or in addition to other Employee Awards granted under this Plan.
The Committee shall determine the Employees to whom Performance Stock Awards
shall be awarded for any Performance Period, the duration of the applicable
Performance Period, the number of restricted shares to be awarded at the end of
a Performance Period to Employees if the Performance Goals are met or exceeded
and the terms and conditions of the Performance Stock Award in addition to those
contained in this Section 7.
(b) Payment of Award. After the end of a Performance Period, the financial
performance of the Corporation during such Performance Period shall be measured
against the Performance Goals. If the Performance Goals are not met, no
restricted shares shall be issued pursuant to the Performance Stock Award. If
the Performance Goals are met or exceeded, the Committee shall certify that fact
in writing in the Committee minutes or elsewhere and certify the number of
restricted shares to be issued under each Performance Stock Award in accordance
with the related Award Agreement. The Committee may, in its sole discretion,
apply Negative Discretion to reduce the number of restricted shares to be issued
under a Performance Stock Award.
(c) Requirement of Employment. To be entitled to receive a Performance
Stock Award, an Employee must remain in the employment of the Corporation
through the end of the Performance Period, except that the Committee may provide
for partial or complete exceptions to this requirement as it deems equitable in
its sole discretion.
8. DIRECTOR STOCK OPTIONS
Subject to the provisions of Section 5, Director Stock Options shall be
granted to Eligible Directors as provided in this Section 8 and the Committee
shall have no discretion with respect to any matters set forth in this Section
8.
(a) Vesting. Each Director Stock Option shall become exercisable on and
after the first anniversary of the date of the grant.
(b) Number of Shares. Director Stock Options shall be granted as follows:
(i) Each person who is first elected or appointed to serve as a
director of the Corporation after the effective date of this Plan and who is an
Eligible Director shall, upon such person's initial appointment or election as
an Eligible Director, automatically be granted Director Stock Options for that
number of shares of Common Stock having a Fair Market Value of $100,000 on the
date the Director Stock Options are granted; and
(ii) Commencing immediately after the adjournment of the Corporation's
annual meeting of shareholders (an "Annual Meeting") in 1995 and immediately
after the adjournment of the Annual
-5-
Meeting each year thereafter, each Eligible Director who was an Eligible
Director immediately preceding such Annual Meeting and who has been elected as a
director at such Annual Meeting shall automatically be granted Director Stock
Options for that number of shares of Common Stock having a Fair Market Value of
$60,000 on the date the Director Stock Options are granted if, but only if, the
return on common equity of the Corporation as set forth in the Corporation's
annual report to shareholders for the immediately preceding fiscal year is equal
to or greater than 10%.
(c) Option Price. Each Director Stock Option shall have an option price
("Option Price") that is equal to the Fair Market Value of the Common Stock on
the date the Director Stock Option is granted.
(d) Duration of Options. No Director Stock Option may be exercisable later
than twenty years and one day from the date of its grant.
(e) Payment. The Option Price upon exercise of any Director Stock Option
shall be payable to the Corporation in full either (i) in U.S. dollars by
personal check, bank draft or money order payable to the order of the
Corporation, by money transfers or direct account debits, (ii) through the
delivery or deemed delivery based on attestation of ownership of shares of
Common Stock with a Fair Market Value at the time of exercise equal to the total
Option Price or (iii) by a combination of the methods described in items (i) and
(ii) above.
(f) Termination of Director Stock Options. If an Eligible Director ceases
to be an Eligible Director for any reason, the rights under any then outstanding
Director Stock Option granted pursuant to this Plan which are exercisable as of
the date such person ceases to be an Eligible Director shall terminate upon the
date determined as provided in Section 8(d), above, or three years after such
cessation date, whichever first occurs. Any then outstanding Director Stock
Option granted to such Eligible Director which is not exercisable as of the date
such person ceases to be an Eligible Director shall terminate on and as of such
date.
9. OTHER TERMS AND CONDITIONS
(a) Assignability. Except to the extent, if any, as may be permitted by the
Code and rules promulgated under Section 16 of the Exchange Act, (i) no Award
shall be assignable or transferable except by will, by the laws of descent and
distribution, pursuant to a qualified domestic relations order as defined by the
Code and as determined or established by the Committee, and (ii) during the
lifetime of a Participant, an Award shall be exercisable only by such
Participant, such Participant's guardian, legal representative or assignee
pursuant to a qualified domestic relations order or as determined or established
by the Committee. An Award shall not otherwise be assignable.
(b) Award Agreement. Each Award under this Plan shall be evidenced by an
Award Agreement.
(c) Rights As A Shareholder. Except as otherwise provided herein or in any
Award Agreement, a Participant shall have no rights as a shareholder with
respect to shares of Common Stock covered by an Award until the date the
Participant or his nominee (which, for purposes of this Plan, shall include any
third party agent selected by the Committee to hold such shares on behalf of a
Participant), guardian or legal representative is the holder of record of such
shares.
(d) No Obligation to Exercise. The grant of an Award shall impose no
obligation upon the Participant to exercise the Award.
(e) Payments by Participants. The Committee may determine that Employee
Awards for which a payment is due from a Participant may be payable: (i) in U.S.
dollars by personal check, bank draft or money order payable to the order of the
Corporation, by money transfers or direct account debits; (ii) through the
delivery or deemed delivery based on attestation to the ownership of shares of
Common Stock with a Fair Market Value equal to the total payment due from the
Participant; (iii) by a combination of the methods described in (i) and (ii)
above; or (iv) by such other methods as the Committee may deem appropriate.
-6-
(f) Tax Withholding. The Corporation shall have the right to withhold from
any payments made under this Plan, or to collect as a condition of payment, any
taxes required by law to be withheld. At any time when a Participant is required
to pay to the Corporation an amount required to be withheld under applicable
income tax laws in connection with a distribution of shares of Common Stock
pursuant to this Plan, the Participant may satisfy this obligation in whole or
in part by electing to have the Corporation withhold from such distribution
shares of Common Stock having a value equal to the amount required to be
withheld. The value of the shares of Common Stock to be withheld shall be based
on the Fair Market Value of the Common Stock on the date that the amount of tax
to be withheld shall be determined (the "Tax Date"). Any such election is
subject to the following restrictions: (i) the election must be made on or prior
to the Tax Date and (ii) the election must be subject to the disapproval of the
Committee.
(g) Restrictions On Sale and Exercise. With respect to Reporting Persons,
and if required to comply with rules promulgated under Section 16 of the
Exchange Act, (i) no Award providing for exercise, a vesting period, a
restriction period or the attainment of performance standards shall permit
unrestricted ownership of shares of Common Stock by the Participant for at least
six months from the date of grant, and (ii) shares of Common Stock acquired
pursuant to this Plan (other than shares of Common Stock acquired as a result of
the granting of a "derivative security") may not be sold or otherwise disposed
of for at least six months after acquisition.
(h) Requirements of Law. The granting of Awards and the issuance of shares
of Common Stock upon the exercise of Awards shall be subject to all applicable
requirements imposed by federal and state securities and other laws, rules and
regulations and by any regulatory agencies having jurisdiction, and by any stock
exchanges upon which the Common Stock may be listed. As a condition precedent to
the issuer of shares of Common Stock pursuant to the grant or exercise of an
Award, the Corporation may require the Participant to take any reasonable action
to meet such requirements.
10. AMENDMENTS
(a) Except as otherwise provided in this Plan, the Board may at any time
terminate and, from time to time, may amend or modify this Plan. Any such action
of the Board may be taken without the approval of the Corporation's
shareholders, but only to the extent that such shareholder approval is not
required by applicable law or regulation, including specifically Rule 16b-3
under the Exchange Act.
(b) No amendment, modification or termination of this Plan shall in any
manner adversely affect any Awards theretofore granted to a Participant under
this Plan without the consent of such Participant.
11. RECAPITALIZATION
The aggregate number of shares of Common Stock as to which Awards may be
granted to Participants, the number of shares thereof covered by each
outstanding Award, and the price per share thereof in each such Award, shall all
be proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock resulting from a stock split, stock dividend, combination
or exchange of shares, exchange for other securities, reclassification,
reorganization, redesignation, merger, consolidation, recapitalization or other
such change. Any such adjustment may provide for the elimination of fractional
shares.
12. NO RIGHT TO EMPLOYMENT
No person shall have any claim or right to be granted an Award, and the
grant of an Award shall not be construed as giving a Participant the right to be
retained in the employ of the Corporation or a Subsidiary. Nothing in this Plan
shall interfere with or limit in any way the right of the Corporation or any
Subsidiary to terminate any Participant's employment at any time, nor confer
upon any Participant any right to continue in the employ of the Corporation or
any Subsidiary.
-7-
13. CHANGE OF CONTROL
(a) Subject to the provisions of Section 13(c) below, notwithstanding
anything contained in this Plan, the provisions of Section 13(a)(iii) below or
any Award Agreement to the contrary, in the event of a Change of Control, as
defined below, the following (x) may, in the sole discretion of the Committee,
occur with respect to any and all Employee Awards outstanding as of such Change
of Control and (y) shall occur with respect to any and all Director Stock
Options outstanding as of such Change of Control:
(i) automatic maximization of performance standards, lapse of all
restrictions and acceleration of any time periods relating to the exercise,
realization or vesting of such Awards so that such Awards may be immediately
exercised, realized or vested in full on or before the relevant date fixed in
the Award Agreement;
(ii) performance shares or performance units shall be paid entirely in
cash;
(iii) upon exercise of a stock option or an incentive stock option
(collectively, an "Option") during the 60-day period from and after the date of
a Change of Control, the Participant exercising the Option may in lieu of the
receipt of Common Stock upon the exercise of the Option, elect by written notice
to the Corporation to receive an amount in cash equal to the excess of the
aggregate Value (as defined below) of the shares of Common Stock covered by the
Option or portion thereof surrendered determined on the date the Option is
exercised, over the aggregate exercise price of the Option (such excess is
referred to herein as the "Aggregate Spread"); provided, however, and
notwithstanding any other provision of this Plan, if the end of such 60-day
period from and after the date of a Change of Control is within six months of
the date of grant of an Option held by a Participant who is a Reporting Person,
such Option shall be canceled in exchange for a cash payment to the Participant
equal to the Aggregate Spread on the day which is six months and one day after
the date of grant of such Option. As used in this Section 13(a)(iii) the term
"Value" means the higher of (i) the highest Fair Market Value during the 60-day
period from and after the date of a Change of Control and (ii) if the Change of
Control is the result of a transaction or series of transactions described in
paragraphs (i) or (iii) of the definition of Change of Control, the highest
price per share of the Common Stock paid in such transaction or series of
transactions (which in the case of paragraph (i) shall be the highest price per
share of the Common Stock as reflected in a Schedule 13D filed by the person
having made the acquisition);
(iv) if a Participant's employment terminates for any reason other
than retirement or death following a Change of Control, any Options held by such
Participant may be exercised by such Participant until the earlier of three
months after the termination of employment or the expiration date of such
Options; and
(v) all Awards become non-cancelable.
(b) A "Change of Control" of the Corporation shall be deemed to have
occurred upon the happening of any of the following events:
(i) the acquisition, other than from the Corporation, by any
individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2)
of the Exchange Act) of beneficial ownership of 20% or more of either the then
outstanding shares of Common Stock of the Corporation or the combined voting
power of the then outstanding voting securities of the Corporation entitled to
vote generally in the election of directors; provided, however, that any
acquisition by the Corporation or any of its Subsidiaries, or any employee
benefit plan (or related trust) of the Corporation or its Subsidiaries, or any
corporation with respect to which, following such acquisition, more than 50% of,
respectively, the then outstanding shares of common stock of such corporation
and the combined voting power of the then outstanding voting securities of such
corporation entitled to vote generally in the election of directors is then
beneficially owned, directly or indirectly, by all or substantially all of the
individuals and entities who were the beneficial owners, respectively, of the
Common Stock and voting securities of the Corporation immediately prior to such
acquisition in substantially the same proportion as their ownership, immediately
-8-
prior to such acquisition, of the then outstanding shares of Common Stock of the
Corporation or the combined voting power of the then outstanding voting
securities of the Corporation entitled to vote generally in the election of
directors, as the case may be, shall not constitute a Change of Control;
(ii) individuals who, as of January 1, 1995, constitute the Board as
of the date hereof (the "Incumbent Board") cease for any reason to constitute at
least a majority of the Board, provided that any individual becoming a director
subsequent to such date whose election, or nomination for election by the
Corporation's shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office is in connection
with an actual or threatened election contest relating to the election of the
directors of the Corporation (as such terms are used in Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act); or
(iii) approval by the shareholders of the Corporation of a
reorganization, merger or consolidation of the Corporation, in each case, with
respect to which the individuals and entities who were the respective beneficial
owners of the Common Stock and voting securities of the Corporation immediately
prior to such reorganization, merger or consolidation do not, following such
reorganization, merger or consolidation, beneficially own, directly or
indirectly, more than 50% of, respectively, the then outstanding shares of
Common Stock and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors, as the case
may be, of the corporation resulting from such reorganization, merger or
consolidation, or a complete liquidation or dissolution of the Corporation or of
the sale or other disposition of all or substantially all of the assets of the
Corporation.
(c) If any right granted pursuant to Section 13(a) would make a Change of
Control transaction ineligible for pooling of interests accounting that but for
Section 13(a) would otherwise be eligible for such accounting treatment, the
Committee shall have the ability to substitute the cash payable pursuant to
Section 13(a) with Common Stock with a Fair Market Value equal to the cash that
would otherwise be payable thereunder.
14. GOVERNING LAW
To the extent that federal laws do not otherwise control, this Plan shall
be construed in accordance with and governed by the law of the State of Ohio.
15. INDEMNIFICATION
Each person who is or shall have been a member of the Committee or of the
Board shall be indemnified and held harmless by the Corporation against and from
any loss, cost, liability or expense that may be imposed upon or reasonably
incurred by him in connection with or resulting from any claim, action, suit or
proceeding to which he may be a party or in which he may be involved by reason
of any action taken or failure to act under this Plan and against and from any
and all amounts paid by him in settlement thereof, with the Corporation's
approval, or paid by him in satisfaction of any judgment in any such action,
suit or proceeding against him, provided he shall give the Corporation an
opportunity, at its own expense, to handle and defend the same before he
undertakes to handle and defend it on his own behalf. The foregoing right of
indemnification shall not be exclusive of any other rights of indemnification to
which such persons may be entitled under the Corporation's Articles of
Incorporation or Code of Regulations, as a matter of law, or otherwise, or any
power that the Corporation may have to indemnify them or hold them harmless.
-9-
16. SAVINGS CLAUSE
This Plan is intended to comply in all aspects with applicable law and
regulation, including, with respect to those Employees who are Reporting
Persons, Rule 16b-3 under the Exchange Act. In case any one or more of the
provisions of this Plan shall be held invalid, illegal or unenforceable in any
respect under applicable law and regulation (including Rule 16b-3), the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby and the invalid, illegal or
unenforceable provision shall be deemed null and void; however, to the extent
permissible by laws, any provision which could be deemed null and void shall
first be construed, interpreted or revised retroactively to permit this Plan to
be construed in compliance with all applicable laws (including Rule 16b-3) so as
to foster the intent of this Plan. Notwithstanding anything in this Plan to the
contrary, the Committee, in its sole and absolute discretion, may bifurcate this
Plan so as to restrict, limit or condition the use of any provision of this Plan
to Participants who are Reporting Persons without so restricting, limiting or
conditioning this Plan with respect to other Participants.
17. EFFECTIVE DATE AND TERM
The effective date of this Plan is April 17, 1995 subject to its approval
by the Corporation's shareholders at their next annual meeting or at any
adjournment thereof, within twelve months following the date of its adoption by
the Board. This Plan shall remain in effect until terminated by the Board.
Amended:
Oct. 1996 - Section 2 - Definition of Committee
Section 9(f) - Tax Withholding
Jan. 1997 - Section 9(a) - Assignability
Jan. 1998 - Section 10 - Amendments - former Section 10(b) deleted
Section 13(a) - Change of Control
Section 13(c) - Change of Control added
Revised 5/30/97
Revised 6/2/97 (tab spacing change only)
Revised 2/27/98
Revised 3/10/98 (correct two typos)
-10-
Exhibit 12.1
JPMorgan Chase & Co.
Computation of ratio of earnings to fixed charges
|
|
|
|
|
|
|
Year ended December 31, 2004 (in millions, except ratios)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Excluding interest on deposits
|
|
|
|
|
|
Income before income taxes
|
|
$
|
6,194
|
|
|
|
|
|
|
|
Fixed charges:
|
|
|
|
|
|
Interest expense
|
|
|
9,234
|
|
|
One-third of rents, net of income from subleases
(a)
|
|
|
343
|
|
|
|
|
|
|
|
Total fixed charges
|
|
|
9,577
|
|
|
|
|
|
|
|
Add: equity in undistributed loss of affiliates
|
|
|
44
|
|
|
|
|
|
|
|
Earnings before taxes and fixed charges, excluding capitalized interest
|
|
$
|
15,815
|
|
|
|
|
|
|
|
Fixed charges, as above
|
|
$
|
9,577
|
|
|
|
|
|
|
|
Ratio of earnings to fixed charges
|
|
|
1.65
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Including interest on deposits
|
|
|
|
|
|
Fixed charges, as above
|
|
$
|
9,577
|
|
|
Add: interest on deposits
|
|
|
4,600
|
|
|
|
|
|
|
|
Total fixed charges and interest on deposits
|
|
$
|
14,177
|
|
|
|
|
|
|
|
Earnings before taxes and fixed charges, excluding capitalized interest, as above
|
|
$
|
15,815
|
|
|
Add: interest on deposits
|
|
|
4,600
|
|
|
|
|
|
|
|
Total earnings before taxes, fixed charges and interest on deposits
|
|
$
|
20,415
|
|
|
|
|
|
|
|
Ratio of earnings to fixed charges
|
|
|
1.44
|
|
|
|
|
|
|
|
|
|
(a)
|
|
The proportion deemed representative of the interest factor.
|
146
Exhibit 12.2
JPMorgan Chase & Co.
Computation of ratio of earnings to fixed charges
and preferred stock dividend requirements
|
|
|
|
|
|
|
Year ended December 31, 2004 (in millions, except ratios)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Excluding interest on deposits
|
|
|
|
|
|
Income before income taxes
|
|
$
|
6,194
|
|
|
|
|
|
|
|
Fixed charges:
|
|
|
|
|
|
Interest expense
|
|
|
9,234
|
|
|
One-third of rents, net of income from subleases
(a)
|
|
|
343
|
|
|
|
|
|
|
|
Total fixed charges
|
|
|
9,577
|
|
|
|
|
|
|
|
Add: equity in undistributed loss of affiliates
|
|
|
44
|
|
|
|
|
|
|
|
Earnings before taxes and fixed charges, excluding capitalized interest
|
|
$
|
15,815
|
|
|
|
|
|
|
|
Fixed charges, as above
|
|
$
|
9,577
|
|
|
Preferred stock dividends (pre-tax)
|
|
|
72
|
|
|
|
|
|
|
|
Fixed charges including preferred stock dividends
|
|
$
|
9,649
|
|
|
|
|
|
|
|
Ratio of earnings to fixed charges and preferred stock dividend requirements
|
|
|
1.64
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Including interest on deposits
|
|
|
|
|
|
Fixed charges including preferred stock dividends, as above
|
|
$
|
9,649
|
|
|
Add: interest on deposits
|
|
|
4,600
|
|
|
|
|
|
|
|
Total fixed charges including preferred stock dividends and interest on deposits
|
|
$
|
14,249
|
|
|
|
|
|
|
|
Earnings before taxes and fixed charges, excluding capitalized interest, as above
|
|
$
|
15,815
|
|
|
Add: interest on deposits
|
|
|
4,600
|
|
|
|
|
|
|
|
Total earnings before taxes, fixed charges and interest on deposits
|
|
$
|
20,415
|
|
|
|
|
|
|
|
Ratio of earnings to fixed charges and preferred stock dividend requirements
|
|
|
1.43
|
|
|
|
|
|
|
|
|
|
(a)
|
|
The proportion deemed representative of the interest factor.
|
147
Exhibit 21.1
JPMorgan Chase & Co.
List of subsidiaries
JPMorgan Chase had the following subsidiaries at December 31, 2004:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Percentage
|
|
|
|
|
|
|
|
|
of voting
|
|
|
|
|
|
|
|
|
securities
|
|
|
|
|
|
|
|
|
owned by
|
|
|
|
|
Organized under the
|
|
|
immediate
|
|
|
Name
|
|
laws of
|
|
|
parent
|
|
|
|
|
BOI Leasing Corporation
|
|
Indiana
|
|
|
100
|
%
|
|
Banc One Building Management Corporation
|
|
Wisconsin
|
|
|
100
|
|
|
Banc One Capital Holdings Corporation
|
|
Ohio
|
|
|
100
|
|
|
BOCP Holdings Corporation
|
|
Ohio
|
|
|
100
|
|
|
BOCF, LLC
|
|
Delaware
|
|
|
100
|
|
|
BOCNY, LLC
|
|
Delaware
|
|
|
100
|
|
|
BOME Investors, Inc.
|
|
Delaware
|
|
|
100
|
|
|
Banc One Capital Partners BC, LLC
|
|
Ohio
|
|
|
80
|
|
|
Banc One Capital BIDCO-1998, LLC
|
|
Louisiana
|
|
|
100
|
|
|
Banc One Capital Partners Holdings, Ltd.
|
|
Ohio
|
|
|
100
|
|
|
Banc One Capital Partners II, LLC
|
|
Delaware
|
|
|
100
|
|
|
Banc One Capital Partners, LLC
|
|
Delaware
|
|
|
100
|
|
|
Banc One Capital Partners IV, Ltd.
|
|
Ohio
|
|
|
100
|
|
|
Banc One Capital Partners V, Ltd.
|
|
Ohio
|
|
|
100
|
|
|
Banc One Capital Partners XI, Ltd.
|
|
Ohio
|
|
|
100
|
|
|
Banc One Stonehenge Capital Fund Wisconsin, LLC
|
|
Delaware
|
|
|
100
|
|
|
Tax Credit Acquisitions II, LLC
|
|
Ohio
|
|
|
100
|
|
|
Tax Credit Acquisitions, LLC
|
|
Ohio
|
|
|
100
|
|
|
Banc One Securities Corporation
|
|
Ohio
|
|
|
100
|
|
|
Banc One Financial LLC
|
|
Delaware
|
|
|
100
|
|
|
JPMorgan Capital Corporation
|
|
Delaware
|
|
|
100
|
|
|
Banc One Capital Management LLC
|
|
Delaware
|
|
|
100
|
|
|
Bank One Investment Corporation
|
|
Delaware
|
|
|
100
|
|
|
OEP Holding Corporation
|
|
Delaware
|
|
|
100
|
|
|
Banc One Equity Capital Fund II, L.L.C.
|
|
Delaware
|
|
|
100
|
|
|
Banc One Equity Capital SBIC Fund II, L.L.C.
|
|
Delaware
|
|
|
100
|
|
|
OEP Management LLC
|
|
Delaware
|
|
|
93.75
|
|
|
One Equity Partners LLC
|
|
Delaware
|
|
|
100
|
|
|
OEP Star Limited LLC
|
|
Delaware
|
|
|
100
|
|
|
First Chicago Capital Corporation
|
|
Delaware
|
|
|
100
|
|
|
One Mortgage Partners Corp.
|
|
Vermont
|
|
|
100
|
|
|
First Chicago Leasing Corporation
|
|
Delaware
|
|
|
100
|
|
|
NLTC Fund Holdings I, Inc.
|
|
Delaware
|
|
|
100
|
|
|
OX FCL Two, Inc.
|
|
Delaware
|
|
|
100
|
|
|
Skyhigh Corporation
|
|
Delaware
|
|
|
100
|
|
|
Oak Street FSC, Ltd.
|
|
Bermuda
|
|
|
100
|
|
|
FCL Ship Five, Inc.
|
|
Delaware
|
|
|
100
|
|
|
Cooper Project, L.L.C.
|
|
Delaware
|
|
|
100
|
|
|
FCL Ship Fourteen, Inc.
|
|
Delaware
|
|
|
100
|
|
|
FM Holdings I, Inc.
|
|
Delaware
|
|
|
100
|
|
|
FM Holdings II, Inc.
|
|
Delaware
|
|
|
100
|
|
|
First Chicago Lease Holdings, Inc.
|
|
Delaware
|
|
|
100
|
|
|
Palo Verde Leasing Corporation
|
|
Delaware
|
|
|
100
|
|
|
First Chicago Lease Investments, Inc.
|
|
Delaware
|
|
|
100
|
|
|
Fountain FSC, Ltd.
|
|
Belgium
|
|
|
100
|
|
|
GHML Holdings I, Inc.
|
|
Delaware
|
|
|
100
|
|
|
GHML Holdings II, Inc.
|
|
Delaware
|
|
|
100
|
|
|
GTC Fund III Holdings, Inc.
|
|
Delaware
|
|
|
100
|
|
|
GTC Fund IV Holdings, Inc.
|
|
Delaware
|
|
|
100
|
|
|
GTC Fund V Holdings, Inc.
|
|
Delaware
|
|
|
100
|
|
148
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Percentage
|
|
|
|
|
|
|
|
|
of voting
|
|
|
|
|
|
|
|
|
securities
|
|
|
|
|
|
|
|
|
owned by
|
|
|
|
|
Organized under the
|
|
|
immediate
|
|
|
Name
|
|
laws of
|
|
|
parent
|
|
|
|
|
Banc One Financial Services, Inc.
|
|
Indiana
|
|
|
100
|
|
|
Banc One Insurance Holdings, Inc.
|
|
Arizona
|
|
|
100
|
|
|
Banc One Insurance Agency, Inc.
|
|
Wisconsin
|
|
|
100
|
|
|
Banc One Insurance Company
|
|
Vermont
|
|
|
100
|
|
|
Banc One Life Reinsurance Company
|
|
Arizona
|
|
|
100
|
|
|
Federal Kemper Life Assurance Company
|
|
Illinois
|
|
|
100
|
|
|
Zurich Life Insurance Company of America
|
|
Illinois
|
|
|
100
|
|
|
Zurich Life Insurance Company of New York
|
|
New York
|
|
|
100
|
|
|
One Life Direct, Inc.
|
|
Illinois
|
|
|
100
|
|
|
Banc One Kentucky Insurance Company
|
|
Kentucky
|
|
|
100
|
|
|
Banc One Management Corporation
|
|
Ohio
|
|
|
100
|
|
|
Banc One Deferred Benefits Corporation
|
|
Ohio
|
|
|
100
|
|
|
Banc One Neighborhood Development Corporation
|
|
Ohio
|
|
|
100
|
|
|
Bank One Trust Company, National Association
|
|
United States
|
|
|
100
|
|
|
Bridge Acquisition Holdings, Inc.
|
|
Delaware
|
|
|
100
|
|
|
CCC Holding, Inc.
|
|
Delaware
|
|
|
100
|
|
|
Chase Commercial Corporation
|
|
Delaware
|
|
|
100
|
|
|
CMRCC, Inc.
|
|
New York
|
|
|
100
|
|
|
Chase Funding, Inc.
|
|
New York
|
|
|
100
|
|
|
Chase Home Mortgage Corporation of the Southeast
|
|
Florida
|
|
|
100
|
|
|
Chase Investment Services Corp.
|
|
Delaware
|
|
|
100
|
|
|
Chase Lincoln First Commercial Corporation
|
|
Delaware
|
|
|
100
|
|
|
Chase Manhattan Realty Leasing Corporation
|
|
New York
|
|
|
100
|
|
|
PV2-APS 150 Corporation
|
|
Delaware
|
|
|
100
|
|
|
PV2-PNM December 35 Corporation
|
|
Delaware
|
|
|
100
|
|
|
Palo Verde 1-PNM August 50 Corporation
|
|
Delaware
|
|
|
100
|
|
|
Palo Verde 1-PNM December 75 Corporation
|
|
Delaware
|
|
|
100
|
|
|
Chase Shareholder Services of California, Inc.
|
|
Delaware
|
|
|
100
|
|
|
Chatham Ventures, Inc.
|
|
New York
|
|
|
100
|
|
|
J.P. Morgan Partners (BHCA), L.P.
|
|
California
|
|
|
100
|
|
|
J.P. Morgan Partners (SBIC), LLC
|
|
California
|
|
|
100
|
|
|
Chemical Equity Incorporated
|
|
New York
|
|
|
100
|
|
|
Chemical Investments, Inc.
|
|
Delaware
|
|
|
100
|
|
|
Clintstone Properties Inc.
|
|
New York
|
|
|
100
|
|
|
Hambrecht & Quist Group
|
|
Delaware
|
|
|
100
|
|
|
Hambrecht & Quist California
|
|
California
|
|
|
100
|
|
|
Hambrecht & Quist Guaranty Finance, LLC
|
|
California
|
|
|
87.5
|
|
|
Hatherley Insurance Ltd.
|
|
Bermuda
|
|
|
100
|
|
|
J.P. Morgan Capital Financing Limited
|
|
England
|
|
|
100
|
|
|
Aldermanbury Investments Limited
|
|
England
|
|
|
100
|
|
|
Robert Fleming Holdings Limited
|
|
England
|
|
|
100
|
|
|
Copthall Overseas Limited
|
|
England
|
|
|
100
|
|
|
Robert Fleming (Luxembourg) (Joint Ventures) Sarl
|
|
Luxembourg
|
|
|
100
|
|
|
Robert Fleming Investment Trust Limited
|
|
England
|
|
|
100
|
|
|
J.P. Morgan Chase International Financing Limited
|
|
England
|
|
|
100
|
|
|
J.P. Morgan Chase Community Development Corporation
|
|
Delaware
|
|
|
100
|
|
|
J.P. Morgan Chase National Corporate Services, Inc.
|
|
New York
|
|
|
100
|
|
|
J.P. Morgan Corporate Services Limited
|
|
England
|
|
|
100
|
|
|
Robert Fleming Holdings Inc.
|
|
Delaware
|
|
|
100
|
|
|
J.P. Morgan Equity Holdings, Inc.
|
|
Delaware
|
|
|
100
|
|
|
CBD Holdings Ltd.
|
|
Delaware
|
|
|
100
|
|
|
Chase Life & Annuity Co.
|
|
Ohio
|
|
|
100
|
|
|
Chase Life & Annuity Company of New York
|
|
New York
|
|
|
100
|
|
|
Great Lakes Insurance Company
|
|
Delaware
|
|
|
100
|
|
|
CMC Holding Delaware Inc.
|
|
Delaware
|
|
|
100
|
|
|
A.S. Holding Corporation
|
|
Delaware
|
|
|
100
|
|
|
Chase Manhattan Bank USA, National Association
|
|
United States
|
|
|
100
|
|
|
Card Acquisition Funding LLC
|
|
Delaware
|
|
|
100
|
|
|
Chase BankCard Services, Inc.
|
|
Delaware
|
|
|
100
|
|
|
Chase Data Services Corporation
|
|
Delaware
|
|
|
100
|
|
149
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Percentage
|
|
|
|
|
|
|
|
|
of voting
|
|
|
|
|
|
|
|
|
securities
|
|
|
|
|
|
|
|
|
owned by
|
|
|
|
|
Organized under the
|
|
|
immediate
|
|
|
Name
|
|
laws of
|
|
|
parent
|
|
|
|
|
Chase Insurance Agency, Inc.
|
|
Delaware
|
|
|
100
|
|
|
Cross Country Insurance Company
|
|
Vermont
|
|
|
100
|
|
|
First USA Services, Inc.
|
|
Delaware
|
|
|
100
|
|
|
First USA Management Services, Inc.
|
|
Delaware
|
|
|
100
|
|
|
J.P. Morgan Investor Services Co.
|
|
Delaware
|
|
|
100
|
|
|
Chase Re Limited
|
|
Bermuda
|
|
|
100
|
|
|
J.P. Morgan Personal Wealth Management, Inc.
|
|
Delaware
|
|
|
100
|
|
|
J.P. Morgan Trust Company of Delaware
|
|
Delaware
|
|
|
100
|
|
|
J.P. Morgan Trust Company, National Association
|
|
United States
|
|
|
100
|
|
|
Texas Commerce Shareholders Company
|
|
Texas
|
|
|
100
|
|
|
J.P. Morgan Fleming Asset Management Holdings Inc.
|
|
Delaware
|
|
|
100
|
|
|
J.P. Morgan Fleming Asset Management (Asia) Inc.
|
|
Delaware
|
|
|
100
|
|
|
J.P. Morgan Fleming Asset Management (Japan) Limited
|
|
Japan
|
|
|
100
|
|
|
J.P. Morgan Fleming Taiwan Limited
|
|
Taiwan
|
|
|
100
|
|
|
JF Asset Management International Limited
|
|
British Virgin Islands
|
|
|
100
|
|
|
JF Asset Management Limited
|
|
Hong Kong
|
|
|
100
|
|
|
JF Funds Limited
|
|
Hong Kong
|
|
|
100
|
|
|
JF Asset Management (Taiwan) Limited
|
|
Taiwan
|
|
|
99.9
|
|
|
J.P. Morgan Fleming Asset Management (Canada) Inc.
|
|
Canada
|
|
|
100
|
|
|
J.P. Morgan Fleming Asset Management International Limited
|
|
England
|
|
|
100
|
|
|
Robert Fleming Asset Management Limited
|
|
England
|
|
|
100
|
|
|
Robert Fleming (Luxembourg) Sarl
|
|
Luxembourg
|
|
|
100
|
|
|
J.P. Morgan Fleming Asset Management (Europe) S.a.r.l
|
|
Luxembourg
|
|
|
100
|
|
|
J.P. Morgan Fleming Asset Management France SAS
|
|
France
|
|
|
100
|
|
|
J.P. Morgan Fleming Societa di Gestione del Risparmio S.p.A.
|
|
Italy
|
|
|
100
|
|
|
Chase Fleming Luxembourg Holding S.A.
|
|
Luxembourg
|
|
|
100
|
|
|
Fleming Flagship Advisory Company Sarl
|
|
Luxembourg
|
|
|
100
|
|
|
JPMorgan Fleming srl
|
|
Italy
|
|
|
100
|
|
|
J.P. Morgan Fleming Asset Management (UK) Limited
|
|
England
|
|
|
100
|
|
|
J.P. Morgan Fleming Life Limited
|
|
England
|
|
|
100
|
|
|
J.P. Morgan Fleming Marketing Limited
|
|
England
|
|
|
100
|
|
|
Save & Prosper Insurance Limited
|
|
England
|
|
|
100
|
|
|
Save & Prosper Pensions Limited
|
|
England
|
|
|
100
|
|
|
Save & Prosper International Insurance Limited
|
|
Bermuda
|
|
|
100
|
|
|
J.P. Morgan Investment Management Limited
|
|
England
|
|
|
100
|
|
|
J.P. Morgan Fleming Asset Management (London) Limited
|
|
England
|
|
|
100
|
|
|
J.P. Morgan Investment Management Inc.
|
|
Delaware
|
|
|
100
|
|
|
J.P. Morgan Funding Corp.
|
|
England
|
|
|
100
|
|
|
J.P. Morgan Futures Inc.
|
|
Delaware
|
|
|
100
|
|
|
J.P. Morgan GT Corporation
|
|
Delaware
|
|
|
100
|
|
|
J.P. Morgan International Holdings Corp.
|
|
Delaware
|
|
|
100
|
|
|
J.P. Morgan Trust Company (Bahamas) Limited
|
|
Bahamas
|
|
|
100
|
|
|
J.P. Morgan Trust Company (Cayman) Limited
|
|
Cayman Islands, BWI
|
|
|
100
|
|
|
JPMAC Holdings Inc.
|
|
Delaware
|
|
|
100
|
|
|
J.P. Morgan Invest Inc.
|
|
Delaware
|
|
|
100
|
|
|
J.P. Morgan Invest, LLC
|
|
Delaware
|
|
|
100
|
|
|
J.P. Morgan Retirement Plan Services LLC
|
|
Delaware
|
|
|
100
|
|
|
J.P. Morgan Private Investments Inc.
|
|
Delaware
|
|
|
100
|
|
|
J.P. Morgan Services Inc.
|
|
Delaware
|
|
|
100
|
|
|
J.P. Morgan Ventures Corporation
|
|
Delaware
|
|
|
100
|
|
|
DNT Asset Trust
|
|
Delaware
|
|
|
100
|
|
|
Ventures Business Trust
|
|
Delaware
|
|
|
100
|
|
|
JPMP Capital Corp.
|
|
New York
|
|
|
100
|
|
|
J.P. Morgan Partners, LLC
|
|
Delaware
|
|
|
100
|
|
|
JPMP Capital, LLC
|
|
Delaware
|
|
|
100
|
|
|
LabMorgan International Ltd.
|
|
Cayman Islands, BWI
|
|
|
100
|
|
|
J.P. Morgan Capital Bahamas Limited
|
|
Bahamas
|
|
|
100
|
|
|
J.P. Morgan Capital, L.P.
|
|
Delaware
|
|
|
100
|
|
|
J.P. Morgan SBIC Holdings LLC
|
|
Delaware
|
|
|
100
|
|
150
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Percentage
|
|
|
|
|
|
|
|
|
of voting
|
|
|
|
|
|
|
|
|
securities
|
|
|
|
|
|
|
|
|
owned by
|
|
|
|
|
Organized under the
|
|
|
immediate
|
|
|
Name
|
|
laws of
|
|
|
parent
|
|
|
|
|
JPMCC Luxembourg Corporation
|
|
Luxembourg
|
|
|
100
|
|
|
J.P. Morgan Capital Luxembourg S.a.r.l.
|
|
Luxembourg
|
|
|
100
|
|
|
JPMCC Belgium S.P.R.L.
|
|
Belgium
|
|
|
100
|
|
|
JPMCC Belgium (SCA)
|
|
Belgium
|
|
|
100
|
|
|
J.P. Morgan Partnership Capital Corporation
|
|
Delaware
|
|
|
100
|
|
|
J.P. Morgan Partnership Investment Corporation
|
|
Delaware
|
|
|
100
|
|
|
Peabody Real Estate Partnership Corporation
|
|
Delaware
|
|
|
100
|
|
|
JPMorgan Chase Bank, Dearborn
|
|
Michigan
|
|
|
100
|
|
|
JPMorgan Chase Bank, National Association
|
|
United States
|
|
|
100
|
|
|
Anexsys Holdings, Inc.
|
|
Delaware
|
|
|
100
|
|
|
Anexsys, LLC
|
|
Illinois
|
|
|
64
|
(a)
|
|
BOILL IHC, Inc.
|
|
Nevada
|
|
|
100
|
|
|
BONA Capital I, LLC
|
|
Delaware
|
|
|
100
|
|
|
BONA Capital II, LLC
|
|
Delaware
|
|
|
100
|
|
|
BOTAC, Inc.
|
|
Nevada
|
|
|
100
|
|
|
Banc One Acceptance Corporation
|
|
Ohio
|
|
|
100
|
|
|
Banc One Arizona Leasing Corporation
|
|
Arizona
|
|
|
100
|
|
|
Banc One Building Corporation
|
|
Illinois
|
|
|
100
|
|
|
Banc One Community Development Corporation
|
|
Delaware
|
|
|
100
|
|
|
Banc One Equipment Finance, Inc.
|
|
Indiana
|
|
|
100
|
|
|
Banc One Investment Advisors Corporation
|
|
Ohio
|
|
|
100
|
|
|
Security Capital Research & Management Incorporated
|
|
Delaware
|
|
|
100
|
|
|
Banc One Kentucky Vehicle Leasing Company
|
|
Kentucky
|
|
|
100
|
|
|
Banc One POS Services Corporation
|
|
Ohio
|
|
|
100
|
|
|
Banc One Payment Services, LLC
|
|
Delaware
|
|
|
74.83
|
|
|
BOPS Holdings, LLC
|
|
Delaware
|
|
|
99
|
|
|
Paymentech, L.P.
|
|
Delaware
|
|
|
100
|
|
|
Paymentech Salem Services, LLC
|
|
Delaware
|
|
|
100
|
|
|
FDC Offer Corporation
|
|
Delaware
|
|
|
54.8
|
|
|
Paymentech, Inc.
|
|
Delaware
|
|
|
100
|
|
|
Paymentech Management Resources, Inc.
|
|
Delaware
|
|
|
100
|
|
|
Paymentech Employee Resources, LLC
|
|
Delaware
|
|
|
100
|
|
|
Banc One Private Mortgage Insurance Company, Inc.
|
|
Maine
|
|
|
100
|
|
|
Banc One Real Estate Investment Corp.
|
|
Delaware
|
|
|
100
|
|
|
Bank One Auto Securitization LLC
|
|
Delaware
|
|
|
100
|
|
|
Bank One Equity Investors — BIDCO, Inc.
|
|
Louisiana
|
|
|
100
|
|
|
Bank One International Corporation
|
|
United States
|
|
|
100
|
|
|
CSL Leasing Inc.
|
|
Delaware
|
|
|
100
|
|
|
Cedar Hill International Corp.
|
|
Delaware
|
|
|
100
|
|
|
Chase Access Services Corporation
|
|
Delaware
|
|
|
100
|
|
|
Chase Bankruptcy Information Systems, Inc.
|
|
Delaware
|
|
|
100
|
|
|
Chase Community Development Corporation
|
|
Delaware
|
|
|
100
|
|
|
Chase Education Holdings, Inc.
|
|
Delaware
|
|
|
100
|
|
|
Chase Equipment Leasing, Inc.
|
|
Ohio
|
|
|
100
|
|
|
Chase Funding Corporation
|
|
Delaware
|
|
|
100
|
|
|
Chase Manhattan Automotive Finance Corporation
|
|
Delaware
|
|
|
100
|
|
|
Chase Manhattan Mortgage Corporation
|
|
New Jersey
|
|
|
100
|
|
|
Chase Ventures Holdings, Inc.
|
|
New Jersey
|
|
|
100
|
|
|
The Home Loan Group, LP
|
|
California
|
|
|
50
|
|
|
Chase Merchant Ventures, Inc.
|
|
Delaware
|
|
|
100
|
|
|
Chase Mortgage Holdings, Inc.
|
|
Delaware
|
|
|
100
|
|
|
Chase Preferred Capital Corporation
|
|
Delaware
|
|
|
100
|
|
|
CPCC Delaware Statutory Trust
|
|
Delaware
|
|
|
100
|
|
|
CPCC Massachusetts Business Trust
|
|
Massachusetts
|
|
|
100
|
|
|
CPCC Texas Limited Partnership
|
|
Texas
|
|
|
100
|
|
|
Chem Network Processing Services, Inc.
|
|
New Jersey
|
|
|
100
|
|
|
Colson Services Corp.
|
|
Delaware
|
|
|
100
|
|
|
FC Energy Finance I, Inc.
|
|
Delaware
|
|
|
100
|
|
|
FC Energy Finance II, Inc.
|
|
Delaware
|
|
|
100
|
|
151
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Percentage
|
|
|
|
|
|
|
|
|
of voting
|
|
|
|
|
|
|
|
|
securities
|
|
|
|
|
|
|
|
|
owned by
|
|
|
|
|
Organized under the
|
|
|
immediate
|
|
|
Name
|
|
laws of
|
|
|
parent
|
|
|
|
|
FNBC Leasing Corporation
|
|
Delaware
|
|
|
100
|
|
|
Genesis Holding Corporation
|
|
Delaware
|
|
|
100
|
|
|
Liberty Payment Services, Inc.
|
|
Kentucky
|
|
|
100
|
|
|
Manufacturers Hanover Leasing International Corp.
|
|
Delaware
|
|
|
100
|
|
|
Chase Leasing of Texas, Inc.
|
|
Delaware
|
|
|
100
|
|
|
Naugatuck Holding Corp.
|
|
Delaware
|
|
|
100
|
|
|
Overseas Realty Corp.
|
|
New York
|
|
|
100
|
|
|
South Cutler Corporation
|
|
Delaware
|
|
|
100
|
|
|
Harvest Opportunity Holdings Corp.
|
|
New York
|
|
|
100
|
|
|
Independence Park Building Inc.
|
|
Delaware
|
|
|
100
|
|
|
J.P. Morgan Alternative Asset Management, Inc.
|
|
Delaware
|
|
|
100
|
|
|
J.P. Morgan Chase Custody Services, Inc.
|
|
Delaware
|
|
|
100
|
|
|
J.P. Morgan Electronic Financial Services, Inc.
|
|
New York
|
|
|
100
|
|
|
J.P. Morgan FCS Corporation
|
|
Texas
|
|
|
100
|
|
|
J.P. Morgan International Inc.
|
|
United States
|
|
|
100
|
|
|
Bank One International Holdings Corporation
|
|
United States
|
|
|
100
|
|
|
Bank One Europe Limited
|
|
England
|
|
|
100
|
|
|
J.P. Morgan International Finance Limited
|
|
United States
|
|
|
100
|
|
|
Norchem Holdings e Negocios S.A.
|
|
Brazil
|
|
|
78.24
|
|
|
Robert Fleming Equity (Bermuda) Limited
|
|
Bermuda
|
|
|
100
|
|
|
Willard Holdings, Inc.
|
|
Delaware
|
|
|
100
|
|
|
Woodward Holdings, Inc.
|
|
Delaware
|
|
|
100
|
|
|
BOL (C) II, Inc.
|
|
Delaware
|
|
|
100
|
|
|
BOL Canada II Sub, Inc.
|
|
Delaware
|
|
|
100
|
|
|
BOL Canada II Trust
|
|
Delaware
|
|
|
100
|
|
|
BO Leasing II ULC
|
|
Canada
|
|
|
100
|
|
|
BOL Canada I, Inc.
|
|
Delaware
|
|
|
100
|
|
|
BOL Canada I Sub, Inc.
|
|
Delaware
|
|
|
100
|
|
|
BO Leasing I ULC
|
|
Canada
|
|
|
100
|
|
|
BOL Canada III, Inc.
|
|
Delaware
|
|
|
100
|
|
|
BOL Canada III Sub, Inc.
|
|
Delaware
|
|
|
100
|
|
|
BO Leasing III ULC
|
|
Canada
|
|
|
100
|
|
|
Banco J.P. Morgan S.A.
|
|
Brazil
|
|
|
99.69
|
(b)
|
|
J.P. Morgan Corretora de Cambio e Valores Mobiliarios S.A.
|
|
Brazil
|
|
|
100
|
|
|
J.P. Morgan S.A. Distribuidora de Titulos e Valores Mobiliarios
|
|
Brazil
|
|
|
100
|
|
|
Dearborn Merchant Services, Inc.
|
|
Canada
|
|
|
100
|
|
|
Paymentech Canada
|
|
Canada
|
|
|
100
|
|
|
J.P. Morgan Bank International LLC
|
|
Russian Federation
|
|
|
100
|
|
|
J.P. Morgan Beteiligungs-und Verwaltungsgesellschaft M6H
|
|
Germany
|
|
|
100
|
|
|
J.P. Morgan AG
|
|
Germany
|
|
|
100
|
|
|
J.P. Morgan Fonds Services GmbH
|
|
Germany
|
|
|
100
|
|
|
J.P. Morgan International Holdings Limited
|
|
Cayman Islands, BWI
|
|
|
100
|
|
|
J.P. Morgan India Securities Holdings Limited
|
|
Mauritius
|
|
|
100
|
|
|
J.P. Morgan Services India Private Limited
|
|
India
|
|
|
100
|
|
|
J.P. Morgan Indonesia Holdings (B.V.I.) Limited
|
|
British Virgin Islands
|
|
|
100
|
|
|
J.P. Morgan Securities (Taiwan) Limited
|
|
Taiwan
|
|
|
74.95
|
(c)
|
|
J.P. Morgan Securities Holdings (Bermuda) Limited
|
|
Bermuda
|
|
|
100
|
|
|
J.P. Morgan Securities Singapore Private Limited
|
|
Singapore
|
|
|
100
|
|
|
Jadeling Malaysia Holdings Limited
|
|
British Virgin Islands
|
|
|
100
|
|
|
NorChem Participacoes e Consultoria S.A.
|
|
Brazil
|
|
|
50
|
|
|
Bedford Holdings, Inc.
|
|
Delaware
|
|
|
100
|
|
|
Chase Manhattan Holdings Limitada
|
|
Brazil
|
|
|
99.99
|
|
|
Inversiones Y Asesorias Chase Manhattan Limitada
|
|
Chile
|
|
|
99.94
|
|
|
J.P. Morgan & Cie S.A.
|
|
France
|
|
|
100
|
|
|
J.P. Morgan (Suisse) SA
|
|
Switzerland
|
|
|
100
|
|
|
J.P. Morgan Bank (Ireland) plc
|
|
Republic of Ireland
|
|
|
100
|
|
|
J.P. Morgan Bank Luxembourg S.A.
|
|
Luxembourg
|
|
|
100
|
|
|
J.P. Morgan Bank, S.A.
|
|
Spain
|
|
|
100
|
|
|
J.P. Morgan Capital Holdings Limited
|
|
England
|
|
|
99.99
|
|
|
J.P. Morgan Chase (UK) Holdings Limited
|
|
England
|
|
|
100
|
|
152
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Percentage
|
|
|
|
|
|
|
|
|
of voting
|
|
|
|
|
|
|
|
|
securities
|
|
|
|
|
|
|
|
|
owned by
|
|
|
|
|
Organized under the
|
|
|
immediate
|
|
|
Name
|
|
laws of
|
|
|
parent
|
|
|
|
|
J.P. Morgan Chase International Holdings Limited
|
|
England
|
|
|
100
|
|
|
Crosby Sterling (Holdings) Limited
|
|
England
|
|
|
100
|
|
|
J.P. Morgan EU Holdings Limited
|
|
England
|
|
|
100
|
|
|
J.P. Morgan (SC) Limited
|
|
England
|
|
|
100
|
|
|
J.P. Morgan Equities Limited
|
|
South Africa
|
|
|
100
|
|
|
J.P. Morgan Europe Limited
|
|
England
|
|
|
100
|
|
|
J.P. Morgan Markets LLP
|
|
England
|
|
|
100
|
|
|
J.P. Morgan Securities Ltd.
|
|
England
|
|
|
100
|
|
|
Robert Fleming (Overseas) Number 2 Limited
|
|
England
|
|
|
100
|
|
|
J.P. Morgan plc
|
|
England
|
|
|
100
|
|
|
J.P. Morgan Trustee and Depositary
|
|
England
|
|
|
100
|
|
|
J.P. Morgan Luxembourg International S.a.r.l.
|
|
Luxembourg
|
|
|
99.9
|
|
|
J.P. Morgan Cayman Limited
|
|
Cayman Islands, BWI
|
|
|
100
|
|
|
J.P. Morgan Chase Bank Berhad
|
|
Malaysia
|
|
|
100
|
|
|
J.P. Morgan Chile Limitada
|
|
Chile
|
|
|
100
|
|
|
J.P. Morgan Funding South East Asia Private Limited
|
|
Singapore
|
|
|
100
|
|
|
J.P. Morgan Grupo Financiero S.A. De C.V.
|
|
Mexico
|
|
|
100
|
|
|
Banco J.P. Morgan S.A., Institucion de Banca Multiple, J.P. Morgan Grupo Financiro
|
|
Mexico
|
|
|
100
|
|
|
J.P. Morgan Holdings (Hong Kong) Limited
|
|
Hong Kong
|
|
|
100
|
|
|
Copthall Mauritius Investment Limited
|
|
Mauritius
|
|
|
100
|
|
|
J.P. Morgan Futures (Korea) Limited
|
|
South Korea
|
|
|
100
|
|
|
J.P. Morgan Securities (Far East) Limited
|
|
Hong Kong
|
|
|
100
|
|
|
J.P. Morgan Broking (Hong Kong) Limited
|
|
Hong Kong
|
|
|
100
|
|
|
J.P. Morgan International Derivatives Ltd.
|
|
Channel Islands
|
|
|
100
|
|
|
J.P. Morgan Investimentos e Financas Ltda.
|
|
Brazil
|
|
|
100
|
|
|
J.P. Morgan Malaysia Ltd.
|
|
Malaysia
|
|
|
100
|
|
|
J.P. Morgan Overseas Capital Corporation
|
|
Delaware
|
|
|
100
|
|
|
J.P. Morgan Australia Group Pty Limited
|
|
Australia
|
|
|
100
|
|
|
J.P. Morgan Operations Australia Limited
|
|
Australia
|
|
|
100
|
|
|
J.P. Morgan Administrative Services Australia Limited
|
|
Australia
|
|
|
100
|
|
|
J.P. Morgan Australia Limited
|
|
New South Wales
|
|
|
100
|
|
|
J.P. Morgan Financial Services New Zealand Limited
|
|
Australia
|
|
|
100
|
|
|
J.P. Morgan Institutional Services Australia Limited
|
|
Australia
|
|
|
100
|
|
|
J.P. Morgan Nominees Australia Limited
|
|
Australia
|
|
|
100
|
|
|
J.P. Morgan Portfolio Services Limited
|
|
Australia
|
|
|
100
|
|
|
J.P. Morgan Trust Australia Limited
|
|
Australia
|
|
|
100
|
|
|
JFOM Pty Limited
|
|
Australia
|
|
|
100
|
|
|
J.P. Morgan Markets Australia Pty Limited
|
|
Australia
|
|
|
100
|
|
|
J.P. Morgan Espana S.A.
|
|
Spain
|
|
|
100
|
|
|
J.P. Morgan Gestion, Sociedad Gestora de Instituciones de Inversion Colectiva, S.A.
|
|
Spain
|
|
|
100
|
|
|
J.P. Morgan Sociedad de Valores, S.A.
|
|
Spain
|
|
|
79
|
(d)
|
|
J.P. Morgan International Bank Limited
|
|
England
|
|
|
100
|
|
|
J.P. Morgan Securities Canada Inc.
|
|
Canada
|
|
|
100
|
|
|
J.P. Morgan Whitefriars Inc.
|
|
Delaware
|
|
|
100
|
|
|
J.P. Morgan Whitefriars (UK)
|
|
England
|
|
|
100
|
|
|
PT J.P. Morgan Securities Indonesia
|
|
Indonesia
|
|
|
42.75
|
(e)
|
|
J.P. Morgan Partners (CMB Reg K GP), Inc.
|
|
Delaware
|
|
|
100
|
|
|
J.P. Morgan Securities (C.I.) Limited
|
|
Channel Islands
|
|
|
100
|
|
|
J.P. Morgan (Jersey) Limited
|
|
Channel Islands
|
|
|
100
|
|
|
J.P. Morgan Securities Asia Private Limited
|
|
Singapore
|
|
|
100
|
|
|
J.P. Morgan Securities Holdings (Hong Kong) Limited
|
|
Hong Kong
|
|
|
100
|
|
|
J.P. Morgan Investment Holdings II (Mauritius) Limited
|
|
Mauritius
|
|
|
67
|
|
|
J.P. Morgan Securities (Asia Pacific) Limited
|
|
Hong Kong
|
|
|
100
|
|
|
J.P. Morgan Securities Holdings (Caymans) Limited
|
|
Cayman Islands, BWI
|
|
|
100
|
|
|
J.P. Morgan Securities India Private Limited
|
|
India
|
|
|
100
|
|
|
J.P. Morgan Securities South Africa (Proprietary) Limited
|
|
South Africa
|
|
|
100
|
|
|
J.P. Morgan Services Asia Holdings Limited
|
|
Mauritius
|
|
|
100
|
|
|
J.P. Morgan Services India Private Limited
|
|
India
|
|
|
100
|
|
153
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Percentage
|
|
|
|
|
|
|
|
|
of voting
|
|
|
|
|
|
|
|
|
securities
|
|
|
|
|
|
|
|
|
owned by
|
|
|
|
|
Organized under the
|
|
|
immediate
|
|
|
Name
|
|
laws of
|
|
|
parent
|
|
|
|
|
J.P. Morgan Services Japan Ltd.
|
|
Delaware
|
|
|
100
|
|
|
J.P. Morgan Trust Bank Ltd.
|
|
Japan
|
|
|
100
|
|
|
J.P. Morgan Trust Company (Jersey) Limited
|
|
Channel Islands
|
|
|
100
|
|
|
J.P. Morgan Leasing Inc.
|
|
New York
|
|
|
100
|
|
|
J.P. Morgan Mortgage Acquisition Corp
|
|
Delaware
|
|
|
100
|
|
|
J.P. Morgan Mortgage Capital Inc.
|
|
Delaware
|
|
|
100
|
|
|
J.P. Morgan Partners (23A SBIC Manager), Inc.
|
|
Delaware
|
|
|
100
|
|
|
J.P. Morgan Partners (23A SBIC), L.P.
|
|
Delaware
|
|
|
100
|
|
|
J.P. Morgan Property Exchange Inc.
|
|
Delaware
|
|
|
100
|
|
|
J.P. Morgan Treasury Technologies Corporation
|
|
Delaware
|
|
|
100
|
|
|
JPMorgan Securities Holdings LLC
|
|
Delaware
|
|
|
100
|
|
|
J.P. Morgan Institutional Investments Inc.
|
|
Delaware
|
|
|
100
|
|
|
J.P. Morgan Securities Inc.
|
|
Delaware
|
|
|
100
|
|
|
LabMorgan Corporation
|
|
Delaware
|
|
|
100
|
|
|
LabMorgan Investment Corporation
|
|
Delaware
|
|
|
100
|
|
|
MorServ, Inc.
|
|
Delaware
|
|
|
100
|
|
|
NBD Community Development Corporation
|
|
Michigan
|
|
|
100
|
|
|
Offshore Equities, Inc.
|
|
New York
|
|
|
100
|
|
|
One Group Dealer Services, Inc.
|
|
Delaware
|
|
|
100
|
|
|
One Group Administrative Services, Inc.
|
|
Delaware
|
|
|
100
|
|
|
One Mezzanine Capital Corporation
|
|
Delaware
|
|
|
100
|
|
|
Park Assurance Company
|
|
Vermont
|
|
|
100
|
|
|
Sterling Assurance Company
|
|
Vermont
|
|
|
100
|
|
|
Support Development Corporation
|
|
Delaware
|
|
|
100
|
|
|
|
|
(a)
|
|
Anexsys Holding of Missouri owns 36%.
|
|
(b)
|
|
Chase Manhattan Holdings Limitada owns 0.31%.
|
|
(c)
|
|
JF Securities Limited owns 10%, and Robert Fleming Investment Trust Limited owns 10%.
|
|
(d)
|
|
J.P. Morgan & Cie S.A. owns 19% and J.P. Morgan Securities Ltd. owns 2%.
|
|
(e)
|
|
J.P. Morgan Indonesia Holdings (B.V.I.) Limited owns 42.5%, and J.P. Morgan Securities Asia
Private Limited owns 13.75%.
|
Note: Certain intermediary subsidiaries may be omitted in the ownership chain because the listed
subsidiary holds significant assets, but the intermediary subsidiaries do not.
154
Exhibit 23.1
Consent of independent registered public accounting firm
We hereby consent to the incorporation by
reference in the Prospectuses constituting part of
the Registration Statements on Form S-3 (Nos.
33-49965, 33-64261, 333-14959, 333-14959-01, 333-14959-02, 333-14959-03, 333-15649, 333-16773, 333-16773-01, 333-16773-02, 333-16773-03, 333-19719,
333-19719-01, 333-19719-02, 333-22437, 333-37567, 333-37567-03, 333-42807, 333-52826, 333-52962, 333-52962-01, 333-52962-02,
333-56573, 333-56587, 333-56587-02, 333-56587-03, 333-68500, 333-68500-01, 333-68500-02, 333-68500-03, 333-68500-04, 333-70639, 333-71876,
333-94393, 333-107207, 333-116771, 333-116771-01, 333-116771-02,
333-116773, 333-116773-01, 333-116775, 333-116775-01, 333-116775-02, 333-116775-03, 333-116775-04, 333-116822, 333-117770,
333-117785, 333-117785-04
and 333-117785-05) and in the Registration
Statements on Form S-8 (Nos. 33-01776, 33-13457,
33-40272, 33-40675, 33-45017, 33-45018, 33-49909,
33-49911, 33-49913, 33-54547, 33-62453, 33-63833,
333-02073, 333-07941, 333-15281, 333-22451,
333-31634, 333-31656, 333-31666, 333-47350,
333-64476, 333-73119, 333-92217, 333-92737 and
333-112967) of JPMorgan Chase & Co. or affiliates
of our report dated February 22, 2005 relating to the financial
statements, management’s assessment of the effectiveness of
internal control over financial reporting and the effectiveness of
internal control over financial reporting, which appears on
page 83 of this Form 10-K.
/s/ PricewaterhouseCoopers LLP
New York, New York
March 1, 2005
155
Exhibit 31.1
JPMorgan Chase & Co.
CERTIFICATION
I, William B. Harrison, Jr., certify that:
|
1.
|
|
I have reviewed this annual report on Form 10-K of JPMorgan Chase & Co.;
|
|
|
|
2.
|
|
Based on my knowledge, this report does not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements were made, not
misleading with respect to the period covered by this
report;
|
|
|
|
3.
|
|
Based on my knowledge, the Consolidated financial statements, and other financial information
included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows of the registrant as of,
and for, the periods presented in this report;
|
|
|
|
4.
|
|
The registrant’s other certifying officer(s) and I are responsible for establishing and
maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as
defined in Exchange Act Rules 13a-15(f) and 15d-15(f))
for the registrant and have:
|
|
|
a)
|
|
Designed such disclosure controls and procedures, or caused such disclosure controls and
procedures to be designed under our supervision, to
ensure that material information relating to the registrant, including its consolidated
subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is being prepared;
|
|
|
|
|
b)
|
|
Designed such internal controls over financial reporting, or caused such internal
controls over financial reporting to be designed under our super
vision, to provide reasonable assurance regarding the reliability of financial reporting and
the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
|
|
|
|
|
c)
|
|
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and
presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this
report based on such evaluation; and
|
|
|
|
|
d)
|
|
Disclosed in this report any change in the registrant’s internal control over financial
reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth quarter in the case of an annual report) that has
materially affected, or is reasonably likely to materially affect,
the registrant’s internal control over financial reporting; and
|
|
5.
|
|
The registrant’s other certifying officer(s) and I have disclosed, based on our most recent
evaluation of internal control over financial reporting, to the
registrant’s auditors and the audit committee of the registrant’s board of directors (or persons
performing the equivalent function):
|
|
|
a)
|
|
All significant deficiencies and material weaknesses in the design or operation of
internal control over financial reporting which are reasonably
likely to adversely affect the registrant’s ability to record, process, summarize and report
financial information; and
|
|
|
|
|
b)
|
|
Any fraud, whether or not material, that involves management or other employees who have
a significant role in the registrant’s internal control
over financial reporting.
|
Date: March 1, 2005
/s/ William B. Harrison, Jr.
William B. Harrison, Jr.
Chairman and Chief Executive Officer
Exhibit 31.2
JPMorgan Chase & Co.
CERTIFICATION
I, James Dimon, certify that:
|
1.
|
|
I have reviewed this annual report on Form 10-K of JPMorgan Chase & Co.;
|
|
|
|
2.
|
|
Based on my knowledge, this report does not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements were made, not
misleading with respect to the period covered by this
report;
|
|
|
|
3.
|
|
Based on my knowledge, the Consolidated financial statements, and other financial information
included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows of the registrant as of,
and for, the periods presented in this report;
|
|
|
|
4.
|
|
The registrant’s other certifying officer(s) and I are responsible for establishing and
maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as
defined in Exchange Act Rules 13a-15(f) and 15d-15(f))
for the registrant and have:
|
|
|
a)
|
|
Designed such disclosure controls and procedures, or caused such disclosure controls and
procedures to be designed under our supervision, to
ensure that material information relating to the registrant, including its consolidated
subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is being prepared;
|
|
|
|
|
b)
|
|
Designed such internal controls over financial reporting, or caused such internal
controls over financial reporting to be designed under our super
vision, to provide reasonable assurance regarding the reliability of financial reporting and
the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
|
|
|
|
|
c)
|
|
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and
presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this
report based on such evaluation; and
|
|
|
|
|
d)
|
|
Disclosed in this report any change in the registrant’s internal control over financial
reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth quarter in the case of an annual report) that has
materially affected, or is reasonably likely to materially affect,
the registrant’s internal control over financial reporting; and
|
|
5.
|
|
The registrant’s other certifying officer(s) and I have disclosed, based on our most recent
evaluation of internal control over financial reporting, to the
registrant’s auditors and the audit committee of the registrant’s board of directors (or persons
performing the equivalent function):
|
|
|
a)
|
|
All significant deficiencies and material weaknesses in the design or operation of
internal control over financial reporting which are reasonably
likely to adversely affect the registrant’s ability to record, process, summarize and report
financial information; and
|
|
|
|
|
b)
|
|
Any fraud, whether or not material, that involves management or other employees who have
a significant role in the registrant’s internal control
over financial reporting.
|
Date: March 1, 2005
/s/ James Dimon
James Dimon
President and Chief Operating Officer
Exhibit 31.3
JPMorgan Chase & Co.
CERTIFICATION
I, Michael J. Cavanagh, certify that:
|
1.
|
|
I have reviewed this annual report on Form 10-K of JPMorgan Chase & Co.;
|
|
|
|
2.
|
|
Based on my knowledge, this report does not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements were made, not
misleading with respect to the period covered by this
report;
|
|
|
|
3.
|
|
Based on my knowledge, the Consolidated financial statements, and other financial information
included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows of the registrant as of,
and for, the periods presented in this report;
|
|
|
|
4.
|
|
The registrant’s other certifying officer(s) and I are responsible for establishing and
maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as
defined in Exchange Act Rules 13a-15(f) and 15d-15(f))
for the registrant and have:
|
|
|
a)
|
|
Designed such disclosure controls and procedures, or caused such disclosure controls and
procedures to be designed under our supervision, to
ensure that material information relating to the registrant, including its consolidated
subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is being prepared;
|
|
|
|
|
b)
|
|
Designed such internal controls over financial reporting, or caused such internal
controls over financial reporting to be designed under our super
vision, to provide reasonable assurance regarding the reliability of financial reporting and
the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
|
|
|
|
|
c)
|
|
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and
presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this
report based on such evaluation; and
|
|
|
|
|
d)
|
|
Disclosed in this report any change in the registrant’s internal control over financial
reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth quarter in the case of an annual report) that has
materially affected, or is reasonably likely to materially affect,
the registrant’s internal control over financial reporting; and
|
|
5.
|
|
The registrant’s other certifying officer(s) and I have disclosed, based on our most recent
evaluation of internal control over financial reporting, to the
registrant’s auditors and the audit committee of the registrant’s board of directors (or persons
performing the equivalent function):
|
|
|
a)
|
|
All significant deficiencies and material weaknesses in the design or operation of
internal control over financial reporting which are reasonably
likely to adversely affect the registrant’s ability to record, process, summarize and report
financial information; and
|
|
|
|
|
b)
|
|
Any fraud, whether or not material, that involves management or other employees who have
a significant role in the registrant’s internal control
over financial reporting.
|
Date: March 1, 2005
/s/ Michael J. Cavanagh
Michael J. Cavanagh
Executive Vice President and Chief Financial Officer
Exhibit 32
JPMorgan Chase & Co.
CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Annual Report of JPMorgan Chase & Co. on Form 10-K for the period ended
December 31, 2004 as filed with the Securities and Exchange Commission on the date hereof (the
“Report”), each of the undersigned officers of JPMorgan Chase & Co., certify, pursuant to 18
U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
|
1.
|
|
The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities
Exchange Act of 1934; and
|
|
|
|
2.
|
|
The information contained in the Report fairly presents, in all material respects, the
financial condition and results of operations of
JPMorgan Chase & Co.
|
|
|
|
|
|
|
|
Date: March 1, 2005
|
|
By:
|
|
/s/ William B. Harrison, Jr.
|
|
|
|
|
|
|
|
|
|
|
|
William B. Harrison, Jr.
Chairman and Chief Executive Officer
|
|
|
|
|
|
|
|
Date: March 1, 2005
|
|
By:
|
|
/s/ James Dimon
|
|
|
|
|
|
|
|
|
|
|
|
James Dimon
President and Chief Operating Officer
|
|
|
|
|
|
|
|
Date: March 1, 2005
|
|
By:
|
|
/s/ Michael J. Cavanagh
|
|
|
|
|
|
|
|
|
|
|
|
Michael J. Cavanagh
Executive Vice President and Chief Financial Officer
|
This certification accompanies this Form 10-K and shall not be deemed “filed” for purposes of
Section 18 of the Securities Exchange Act of 1934, or otherwise subject to the liability of that
Section.
A signed original of this written statement required by Section 906 has been provided to, and will
be retained by, JPMorgan Chase & Co. and furnished to the Securities and Exchange Commission or its
staff upon request.
|
Next Section
Previous Section