-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, PxEdKsuqox4zO/8rIhLb3AxRkI5Vn1FSwKUIyK+RQKB/G8mkArRaK+sHxG75Adlo UUwUkKTMrZ8HQxKqT8Py/Q== 0000011454-96-000003.txt : 19960202 0000011454-96-000003.hdr.sgml : 19960202 ACCESSION NUMBER: 0000011454-96-000003 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 9 FILED AS OF DATE: 19960201 SROS: NASD SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: BERGEN BRUNSWIG CORP CENTRAL INDEX KEY: 0000011454 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-DRUGS PROPRIETARIES & DRUGGISTS' SUNDRIES [5122] IRS NUMBER: 221444512 STATE OF INCORPORATION: NJ FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: S-3 SEC ACT: 1933 Act SEC FILE NUMBER: 333-00631 FILM NUMBER: 96510019 BUSINESS ADDRESS: STREET 1: 4000 METROPOLITAN DR CITY: ORANGE STATE: CA ZIP: 92668 BUSINESS PHONE: 7143854000 MAIL ADDRESS: STREET 1: 4000 METROPOLITAN DRIVE CITY: ORANGE STATE: CA ZIP: 92668 FORMER COMPANY: FORMER CONFORMED NAME: BERGEN DRUG CO INC DATE OF NAME CHANGE: 19690409 S-3 1 BERGEN BRUNSWIG CORPORATION FORM S-3 FILING Registration No. 33- ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 _______________ FORM S-3 REGISTRATION STATEMENT Under THE SECURITIES ACT OF 1933 _______________ BERGEN BRUNSWIG CORPORATION (Exact name of registrant as specified in its charter) New Jersey 22-1444512 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 4000 Metropolitan Drive Orange, California 92668-3510 (714) 385-4000 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) _______________ MILAN A. SAWDEI Secretary 4000 Metropolitan Drive Orange, California 92668-3510 (714) 385-4255 (Name, address, including zip code, and telephone number, including area code, of agent for service) _______________ Please send copies of all communications to: Richard M. Sandler, Esq. Lowenstein, Sandler, Kohl, Fisher & Boylan, P.C. 65 Livingston Avenue Roseland, New Jersey 07068 _______________ Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement, as determined in light of market conditions. If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [ ] If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [x] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [x]
CALCULATION OF REGISTRATION FEE ============================================================================================== Proposed Proposed maximum Title of each class maximum aggregate Amount of of securities to be Amount to be offering price offering registration registered (1) registered per unit price (2) fee (2) _____________________________________________________________________________________________ Debt Securities, Preferred Stock, Class A Common Stock (including preferred share purchase rights), Debt Securities Warrants, Preferred Stock Warrants and Class A Common Stock Warrants. . . . . . . . . (3) (3) (3)$400,000,000 $137,932 ____________________________________________________________________________________________ Capital Securities(5). . (5) (4) (4) None ============================================================================================ (1) This Registration Statement also covers delayed delivery contracts which may be issued by the Registrant and under which the counterparty may be required to purchase Debt Securities, Preferred Stock, Class A Common Stock and/or Warrants. In addition, any securities registered hereunder may be sold separately, together or as units with other securities registered hereunder. Preferred share purchase rights are currently attached to, and trade with, the Registrant's Class A Common Stock and entitle the holder thereof to purchase one-one hundredth of a share of the Registrant's Series A Junior Preferred Stock. If Class A Common Stock is issued, these rights will be issued for no additional consideration. (2) Estimated solely for the purpose of calculating the registration fee and exclusive of accrued interest, if any. The amount of the filing fee, calculated in accordance with Rule 457(o) of the rules and regulations under the Securities Act of 1933, as amended, equals one twenty-ninth of one percent of the maximum offering price of all of the securities listed above. (3) Not applicable pursuant to General Instruction II.D of Form S-3 under the Securities Act of 1933. (4) No separate consideration will be received for Capital Securities that are issued in exchange for, or upon conversion of, the Debt Securities or Preferred Stock. (5) Capital Securities may consist of such Class A Common Stock, Preferred Stock or other securities as may be issued in exchange for, or upon conversion of, the Debt Securities or Preferred Stock issued under this Registration Statement.
_____________ The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine. _______________________________________________________________________________ SUBJECT TO COMPLETION, DATED JANUARY __, 1996 PROSPECTUS - ---------- BERGEN BRUNSWIG CORPORATION Securities Bergen Brunswig Corporation (the "Company") may from time to time offer in one or more series (i) its unsecured senior or subordinated debt securities (the "Debt Securities"), (ii) shares of its preferred stock, no par value (the "Preferred Stock"), (iii) Depositary Shares (as defined below), (iv) shares of its Class A Common Stock, par value $1.50 per share (the "Class A Common Stock"), (v) warrants to purchase Debt Securities (the "Debt Securities Warrants"), (vi) warrants to purchase Preferred Stock (the "Preferred Stock Warrants"), (vii) warrants to purchase Depositary Shares (the "Depositary Shares Warrants") and (viii) warrants to purchase Class A Common Stock (the "Class A Common Stock Warrants" and, together with the Debt Securities Warrants, the Preferred Stock Warrants and the Depositary Shares Warrants, the "Warrants"), with an aggregate initial public offering price of up to $400,000,000, or the equivalent thereof in one or more foreign currencies or composite currencies, on terms to be determined at the time of sale. The Debt Securities, Preferred Stock, Depository Shares, Class A Common Stock and Warrants are collectively referred to herein as the "Offered Securities". The Offered Securities may be offered, separately or as part of units consisting of one or more such securities ("Units"), in separate series, in amounts, at prices and on terms to be determined at the time of sale and to be set forth in one or more supplements to this Prospectus (each a "Prospectus Supplement"). The specific terms of the Offered Securities in respect of which this Prospectus is being delivered will be described in a Prospectus Supplement. The applicable Prospectus Supplement will describe, among other things and, where applicable, the following: (i) in the case of Debt Securities, the specific designation, priority, aggregate principal amount, denominations, maturity, premium, rate (which may be fixed or variable) and required time of payment of any interest, terms for redemption at the option of the Company, terms of any repayment at the option of the holder, terms for sinking fund payments, terms for conversion or exchange into other securities, provisions regarding original issue discount securities and the initial public offering price; (ii) in the case of Preferred Stock, the specific title and stated value, number of shares, any dividend, liquidation, redemption, conversion, exchange, voting and other preferences and rights, and the initial public offering price; (iii) in the case of Class A Common Stock, the number of shares and the initial public offering price; and (iv) in the case of Warrants, the duration, offering price, exercise price, exercise dates, detachability and terms of the securities for which they are exercisable. In addition, the Prospectus Supplement will describe whether interests in the Preferred Stock will be represented by depositary shares (the "Depositary Shares") evidenced by depositary receipts. Units may be issued in amounts, at prices, on terms and containing such conditions, covenants and other provisions, and consisting of such Offered Securities and other securities, as - 1 - will be set forth in the applicable Prospectus Supplement. The applicable Prospectus Supplement will also contain information, where applicable, about certain United States federal income tax considerations relating to the Offered Securities and any listing on a securities exchange of the Offered Securities covered by such Prospectus Supplement. The Offered Securities may be offered directly, through agents designated from time to time by the Company, to or through underwriters or dealers, or through a combination of such methods. If any agents, underwriters or dealers are involved in the sale of any of the Offered Securities, their names, and any applicable fee, commission, purchase price or discount arrangements with them, as well as the estimated net proceeds to the Company from such sale, will be set forth, or will be calculable from the information set forth, in a Prospectus Supplement. See "Plan of Distribution" for a description of possible indemnification arrangements for any such agents, underwriters or dealers. This Prospectus may not be used to consummate sales of Offered Securities unless accompanied by a Prospectus Supplement. THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. The date of this Prospectus is , 1996 - 2 - IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICES OF THE SECURITIES OFFERED HEREBY AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE (IN THE CASE OF CLASS A COMMON STOCK OR OTHER OFFERED SECURITIES LISTED THEREON), IN THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME. _______________ AVAILABLE INFORMATION The Company has filed with the Securities and Exchange Commission (the "Commission") a registration statement (the "Registration Statement") (of which this Prospectus is a part) under the Securities Act of 1993, as amended (the "Securities Act"), with respect to the Offered Securities. This Prospectus does not contain all of the information set forth in the Registration Statement, certain portions of which have been omitted as permitted by the rules and regulations of the Commission. Statements contained in this Prospectus as to the contents of any contract or other document are not necessarily complete, and in each instance reference is made to the copy of such contract or other document filed as an exhibit to the Registration Statement, each such statement being qualified in all respects by such reference and such exhibits. For further information regarding the Company and the Offered Securities, reference is hereby made to the Registration Statement and such exhibits and schedules which may be obtained from the Commission at its principal office in Washington, D.C. upon payment of the fees prescribed by the Commission. The Company is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files reports, proxy statements and other information with the Commission. The Registration Statement, the exhibits and the schedules forming a part thereof and the reports, proxy statements and other information filed by the Company with the Commission in accordance with the Exchange Act can be inspected and copied at the Commission's Public Reference Section, 450 Fifth Street, N.W.,Room 1024, Washington, D.C. 20549, and at the following regional offices of the Commission: Seven World Trade Center, Suite 1300, New York, New York 10048 and 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such material can be obtained from the Public Reference Section of the Commission, 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, at prescribed rates. In addition, the Company's Class A Common Stock and certain of its debt securities are listed on the New York Stock Exchange and similar information concerning the Company can be inspected and copied at the offices of the New York Stock Exchange, 20 Broad Street, New York, New York 10005. _______________ Unless otherwise indicated, currency amounts in this Prospectus and any Prospectus Supplement are stated in United States dollars ("dollars", "U.S. dollars" or "U.S. $"). _______________ - 3 - INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The documents listed below have been filed by the Company with the Commission and are incorporated herein by reference: (1) Annual Report on Form 10-K for the fiscal year ended September 30, 1995; (2) the description of the Company's Preferred Share Purchase Rights included in the Company's Registration Statement on Form 8-A dated February 14, 1994; and (3) the description of the Company's Class A Common Stock as set forth in the Company's Registration Statement on Form 8-A dated October 20, 1993. All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to the termination of the offering of the Offered Securities shall be deemed to be incorporated by reference in this Prospectus and to be part hereof from the date of filing of such documents. Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Prospectus to the extent that a statement contained herein, or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein, modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus. Copies of all documents which are incorporated herein by reference (not including the exhibits to such documents, unless such exhibits are specifically incorporated by reference in such documents) will be provided without charge to each person, including any beneficial owner, to whom this Prospectus is delivered, upon written or oral request. Copies of this Prospectus, as amended or supplemented from time to time, and any other documents (or parts of documents) that constitute part of this Prospectus under Section 10(a) of the Securities Act will also be provided without charge to each such person, upon written or oral request. Requests should be directed to Bergen Brunswig Corporation, 4000 Metropolitan Drive, Orange, California 92668-3510, Attn: Milan A. Sawdei, Secretary; telephone number: (714) 385-4255. - 4 - THE COMPANY Bergen Brunswig Corporation (the "Company"), through its subsidiaries, is a diversified drug and health care product distribution organization and, as such, is the nation's largest supplier of pharmaceuticals to hospitals and managed care facilities, one of the nation's largest suppliers of pharmaceuticals and health care products to chain and independent pharmacies, and a supplier of medical and surgical products to hospitals, clinics and alternate site health care facilities. The Company is incorporated in New Jersey and maintains its principal executive offices at 4000 Metropolitan Drive, Orange, California 92668-3510; telephone (714) 385-4000. USE OF PROCEEDS Unless otherwise indicated in an accompanying Prospectus Supplement, the Company intends to use the net proceeds from the sale of the Offered Securities for general corporate purposes, which may include, without limitation, the repayment of indebtedness of the Company or of any of its subsidiaries, possible acquisitions, capital expenditures and working capital needs. Pending such application, the net proceeds may be temporarily invested in short term securities. RATIO OF EARNINGS TO FIXED CHARGES The following table sets forth the Company's consolidated ratio of earnings to fixed charges for the periods indicated. The Company has not had any shares of preferred stock outstanding during such periods. Accordingly, the Company's ratios of earnings to fixed charges and earnings to combined fixed charges and preferred dividends were identical for each of the periods presented.
Year Ended ------------------------------------------ September 30, August 31, --------------- ------------------------- 1995 1994(1) 1993 1992(2) 1991 ----- -------- ------- --------- ----- Earnings to fixed charges 3.8x 4.2x 2.5x 5.1x 5.5x ________ (1) On October 1, 1993, the Company changed its fiscal year-end from August 31 to September 30. For the month ended September 30, 1993, the Company's consolidated ratio of earnings to fixed charges was 2.2x. (2) All historical financial information regarding the Company set forth in this Prospectus or incorporated herein by reference has been restated to eliminate the results of operations of Commtron Corporation ("Commtron"), formerly an 81% owned subsidiary of the Company. The Company sold its interest in Commtron to an unaffiliated third party in June 1992. The ratios set forth in the table do not give effect to any acquisitions made after September 30, 1995.
For purposes of calculating the ratio of earnings to fixed charges, "earnings" consist of income from continuing operations before income taxes plus fixed charges. "Fixed charges" consist of interest expense, amortization of debt issuance costs and the portion of rentals for real and personal properties deemed to be representative of the interest factor. - 5 - DESCRIPTION OF DEBT SECURITIES The Debt Securities will constitute either senior securities of the Company ("Senior Debt Securities") or subordinated securities of the Company ("Subordinated Debt Securities"). The Senior Debt Securities (other than LYONs(TM)*, as hereinafter defined) will be issued under a senior indenture, dated as of January 1, 1996 (the "Senior Indenture"), between the Company and Chemical Trust Company of California, as trustee (in such capacity, the "Senior Trustee"). The Subordinated Debt Securities (other than LYONs) will be issued under a subordinated indenture, dated as of January 1, 1996 (the "Subordinated Indenture"), between the Company and Chemical Trust Company of California, as trustee (in such capacity, the "Subordinated Trustee"). The Company may offer Liquid Yield Option(TM)* Notes ("LYONs"), which may be either Senior Debt Securities or Subordinated Debt Securities. LYONs will not be issued under the Senior Indenture or the Subordinated Indenture, but rather will be issued under a separate indenture (the "LYONs Indenture") to be entered into when and if LYONS are issued pursuant to this Prospectus. The Senior Indenture, the Subordinated Indenture and the LYONs Indenture are collectively referred to herein as the "Indentures". A copy of each of the Indentures is filed as an exhibit to the Registration Statement. Certain provisions of the Indentures are referred to and summarized below. The summaries do not purport to be complete and are subject to, and are qualified in their entirety by reference to, all of the provisions of the applicable Indenture. Section references under "Description of Debt Securities" are references to the following: the first reference is to both the Senior Indenture and the Subordinated Indenture; if there is a second reference, the second reference is to the LYONs Indenture. Section references under "Senior Debt Securities" and "Subordinated Debt Securities" below are references to the Senior Indenture and Subordinated Indenture, respectively. General The aggregate principal amount of Debt Securities which can be issued under the Senior Indenture and the Subordinated Indenture is unlimited (Section 3.01). The Debt Securities to which this Prospectus relates will be issued from time to time in such amounts as will result in aggregate proceeds, taking into account all such issuances, of up to $400,000,000. The Debt Securities may be issued in one or more series with the same or various maturities and may be sold at par, at an original issue discount or at a premium. Debt Securities sold at an original issue discount may bear no interest or may bear interest at a rate which is below market rates. The Debt Securities will be unsecured obligations of the Company issued in fully registered form without coupons, in bearer form with coupons or in both such forms. The Senior Debt Securities will rank as to priority of payment with all other outstanding unsubordinated and unsecured indebtedness of the Company, while the indebtedness represented by the Subordinated Debt Securities will be subordinated as described under "Subordinated Debt Securities". - --------------------- [FN] * TM - Trademark of Merrill Lynch & Co., Inc. - 6 - Reference is made to the relevant Prospectus Supplement for the following terms to the extent that they are applicable to any particular series of Debt Securities: (a) the designation and denomination of, and any limit upon the aggregate principal amount of, such Debt Securities; (b) whether such Debt Securities are Senior Debt Securities or Subordinated Debt Securities; (c) the percentage of their principal amount at which such Debt Securities will be issued and, in the case of Debt Securities issued with original issue discount, the principal amount thereof payable upon acceleration of the maturity thereof; (d) the date or dates on which such Debt Securities will mature or the manner in which such dates are determined; (e) the rate or rates (which may be fixed or floating) per annum at which such Debt Securities will bear interest, if any, or the method of determining the same and the date or dates from which such interest, if any, will accrue; (f) the dates on which such interest, if any, will be payable, the dates on which payment of such interest, if any, will commence and the record dates for any such interest payment dates; (g) whether any additional amounts will be payable to holders of such Debt Securities; (h) the terms of any redemption provisions at the option of the Company or any repayment provisions at the option of the holder or upon the occurrence of a specified event; (i) any sinking fund or analogous provisions; (j) whether such Debt Securities will be convertible or exchangeable for other securities and, if so, the terms of any such conversion or exchange and the terms of such other securities; (k) whether such Debt Securities are to be registered securities, bearer securities or both, are to be issuable with or without coupons, the terms upon which bearer securities may be exchanged for registered securities and, in the case of bearer securities, the date as of which such bearer securities shall be dated (if not the date of original issuance of the first security of like tenor and term); (l) whether such Debt Securities are to be offered in the form of a global security and, if so, the identity of the depositary and global exchange agent, whether such global form is temporary or permanent, the circumstances under which any temporary global Debt Security will be exchanged for definitive global Debt Securities and any applicable exchange date; (m) federal income tax consequences; (n) the currency or currencies or currency unit or units of denomination; (o) the currency or currencies or currency unit or units of payment of principal of (and premium, if any) and interest, if any, on such Debt Securities if other than dollars and the time and manner of determining any exchange rate between the currency or currencies of denomination and that or those in which payment is to be made; (p) any index, currency exchange rate, commodity or derivative instrument price, or other publicly available data used to determine the amount of payments of principal of (and premium, if any) and interest, if any, on such Debt Securities; (q) the person to whom any interest on any such registered Debt Security shall be payable, if other than the person in whose name such registered security (or one or more predecessor securities) is registered at the close of business on a regular record date, and the manner in which, or person to whom, any interest on any bearer security will be payable, if other than upon presentation and surrender of the coupons appertaining thereto as they mature; (r) any deletions from, modifications of or additions to the Events of Default with respect to such Debt Securities; (s) the material restrictive covenants of the Company, if any; (t) the applicability of the defeasance provisions of the Indentures; (u) the place or places where the principal of and any premium and interest on such Debt Securities are payable; (v) the identity of the Security Registrar and Paying Agent for such Debt Securities; and (w) any other terms of such Debt Securities. Additional provisions of an Indenture, such as reset and extension provisions, may be made applicable to the Offered Securities, as described in the applicable Prospectus Supplement. For purposes of this Prospectus, any reference to the - 7 - payment of principal (or premium, if any) or interest, if any, on any Debt Securities will be deemed to include mention of the payment of any additional amounts required by the terms of such Debt Securities. The Debt Securities are obligations exclusively of the Company. The Company is a holding company. Its principal assets are its direct or indirect ownership of the capital stock of its subsidiaries, including Bergen Brunswig Drug Company, cash, marketable securities and certain real estate. Because the operations of the Company are currently conducted through subsidiaries, the cash flow and the consequent ability to service debt of the Company, including the Debt Securities, are substantially dependent upon the earnings of its subsidiaries and the distribution of those earnings to the Company or upon loans or other payments of funds by those subsidiaries to the Company. The subsidiaries are separate and distinct legal entities and, except to the extent, if any, described in a Prospectus Supplement pertaining to particular Offered Securities, will have no obligation, contingent or otherwise, to pay any amounts due pursuant to the Debt Securities or to make any funds available therefor, whether by dividends, loans or other payments. In addition, the payment of dividends and the making of loans and advances to the Company by its subsidiaries may be subject to statutory or contractual restrictions, may be contingent upon the earnings of those subsidiaries and are subject to various business considerations. The Debt Securities will be effectively subordinated to all indebtedness and other liabilities, including trade payables, of the Company's subsidiaries. Any right of the Company to receive assets of any of its subsidiaries upon their liquidation or reorganization (and the consequent right of the holders of the Debt Securities to participate in those assets) will be effectively subordinated to the claims of that subsidiary's creditors (including trade creditors), except to the extent that the Company is itself recognized as a nonsubordinated creditor of such subsidiary, in which case the claims of the Company would still be subordinate to any security interests in the assets of such subsidiary and any indebtedness of such subsidiary senior to that held by the Company. The Indentures do not contain any covenants or other provisions designed to afford holders of Debt Securities protection in the event of a highly leveraged or similar transaction involving the Company or any of its subsidiaries. Reference is made to the Prospectus Supplement relating to the Debt Securities offered thereby for information with respect to any deletions from, modifications of, or additions to, the Events of Default or covenants that may be included in the terms of such series of Debt Securities, including any addition of a covenant or other provision providing event risk or similar protection. Conversion Rights Certain Debt Securities may be convertible into other securities of the Company (the "Convertible Debt Securities"). The holders of such Convertible Debt Securities of a specified series may be entitled (subject to prior redemption, repayment or repurchase, if applicable), if so provided in the instruments creating or evidencing such Debt Securities and described in the applicable Prospectus Supplement, to convert any Convertible Debt Securities of - 8 - such series (in denominations set forth in the instruments creating or evidencing such Debt Securities and described in the applicable Prospectus Supplement) into another series of Debt Securities, Debt Securities Warrants, Preferred Stock, Preferred Stock Warrants, Class A Common Stock or Class A Common Stock Warrants, as the case may be (the foregoing securities into which the Convertible Debt Securities may be converted are collectively referred to herein as "Conversion Securities"), at the conversion price set forth in the instruments creating or evidencing such Debt Securities and described in the applicable Prospectus Supplement, subject to adjustment as described therein. The relevant conversion provisions for each series of Convertible Debt Securities will be described in the applicable Prospectus Supplement. The Company is not required to issue fractional shares of Preferred Stock or Class A Common Stock upon conversion of Convertible Debt Securities that are convertible into Preferred Stock or Class A Common Stock, respectively, and, in lieu thereof, will pay a cash adjustment, in the case of Convertible Debt Securities convertible into Preferred Stock, based upon the liquidation preference of such series of Preferred Stock unless otherwise specified in the Prospectus Supplement, and in the case of Class A Common Stock, based upon the market value of the Class A Common Stock. In the case of Convertible Debt Securities convertible into securities other than Preferred Stock or Class A Common Stock, such adjustment will be based on such method as is described in the applicable Prospectus Supplement. Except as described below or in the applicable Prospectus Supplement, no adjustment will be made upon conversion of any Convertible Debt Securities for interest accrued thereon or for dividends on any Conversion Securities issued. Convertible Debt Securities surrendered for conversion during the period from the close of business on any regular record date next preceding any interest payment date to the opening of business on such interest payment date (except Convertible Debt Securities called for redemption) must be accompanied by payment of an amount equal to the interest thereon payable on such interest payment date. In the case of any Convertible Debt Security which has been converted after any regular record date but on or before the next interest payment date (except Convertible Debt Securities called for redemption within such period), the interest payable on such interest payment date shall be paid notwithstanding such conversion, and such interest shall be paid to the holder of such Convertible Debt Security on such regular record date. Except as described above, no interest on converted Debt Securities will be payable by the Company on any interest payment date subsequent to the date of conversion. No other payment or adjustment for interest or dividends is to be made upon conversion. If the conversion price for a series of Convertible Debt Securities that are convertible into Class A Common Stock, Preferred Stock or another security is subject to adjustment upon the occurrence of certain events, the formulas for such adjustment will be described in the applicable Prospectus Supplement. Conversion price adjustments or omissions in making such adjustments may, under certain circumstances, be deemed to be distributions that could be taxable as dividends under the Internal Revenue Code. Mergers and Sales of Assets by the Company - 9 - The Company may not consolidate with or merge into any other person or convey, transfer or lease all or substantially all of its assets to any other person, unless, among other things, (i) the resulting, surviving or transferee person (if other than the Company) is organized and existing under the laws of the United States, any state thereof or the District of Columbia and such person expressly assumes all obligations of the Company under the Debt Securities and the Indentures, and (ii) the Company or such successor person shall not immediately thereafter be in default under the Indentures (Section 8.01)(Section 5.01). Upon the assumption of the Company's obligations by such a person in such circumstances, subject to certain exceptions, the Company will be discharged from all of its obligations under the Debt Securities and the Indentures (Section 8.02) (Section 5.01). Amendment and Waiver Other than amendments not adverse to holders of the Debt Securities, amendments of the Indentures or the Debt Securities may be made only with the consent of the holders of a majority in aggregate principal amount of the Debt Securities of each series affected. Waivers of compliance with any provision of the Debt Securities or the Indentures with respect to any series of Debt Securities may be made only with the consent of the holders of a majority in aggregate principal amount of the Debt Securities of that series. The consent of all holders of affected Debt Securities will be required to (a) change or, in the case of the LYONs, extend, the maturity thereof, (b) reduce the principal amount thereof, (c) reduce the rate of interest thereon or (d) impair the right to institute suit for the payment of principal thereof or interest thereon (Section 9.02)(Section 9.02). The holders of a majority in aggregate principal amount of Debt Securities affected may waive any past default under the applicable Indenture and its consequences, except a default (1) in the payment of the principal of or interest on such Debt Securities, or (2) in respect of a provision which cannot be waived or amended without the consent of all holders of Debt Securities affected thereby and, additionally with respect to the LYONs, a default under the conversion provisions of the LYONs Indenture (Sections 5.13 and 9.02)(Sections 6.04 and 9.02). Denominations, Form, Exchange, Registration and Transfer Debt Securities of a series may be issuable solely as registered securities, solely as bearer securities or both as registered securities and as bearer securities. Debt Securities of a series may be issuable in global form. See "Description of Debt Securities -- Global Securities" below. Unless otherwise indicated in the applicable Prospectus Supplement, if bearer securities are offered, such securities (except those in temporary or permanent global form) will have interest coupons attached. Registered securities of any series will be exchangeable for other registered securities of the same series of authorized denominations and of a like aggregate principal amount, tenor and terms. In addition, if Debt Securities of any series are issuable as both registered securities and bearer securities, at the option of the holder, but subject to applicable laws, upon request confirmed in writing, and subject to the terms of the applicable Indenture, bearer securities (with all matured coupons, except as provided below, and all matured coupons in default) of such series will be exchangeable into registered securities of the same series of any authorized denominations - 10 - and of a like aggregate principal amount, tenor and terms. Unless otherwise specified in the applicable Prospectus Supplement, bearer securities surrendered in exchange for registered securities of the same series between the close of business on a regular record date or a special record date and the relevant date for a payment of interest shall be surrendered without the coupon relating to such date for payment of interest, and such interest will not be payable in respect of the registered security issued in exchange for such bearer securities, but will be payable only to the holder of such coupon when due in accordance with the terms of the applicable Indenture. Unless otherwise specified in the applicable Prospectus Supplement, bearer securities will not otherwise be issued in exchange for registered securities. In connection with its original issuance, no bearer security shall be mailed or otherwise delivered to any location in the United States and, unless otherwise specified in the applicable Prospectus Supplement, a bearer security may be delivered in connection with its original issuance only if the person entitled to receive such bearer security furnishes written certification in the form required by the applicable Indenture. Federal tax laws and regulations contain substantial restrictions regarding the offer, sale, resale and delivery of bearer securities. In the event that the Company should offer bearer securities pursuant to this Prospectus, such restrictions will be described in the applicable Prospectus Supplement. Unless otherwise indicated in the applicable Prospectus Supplement, Debt Securities may be presented for exchange as provided above, and registered securities may be presented for registration of transfer (duly endorsed or accompanied by a satisfactory written instrument of transfer), at the office of the Security Registrar or at the office of any transfer agent designated by the Company for such purpose with respect to such series of Debt Securities, without service charge and upon payment of any taxes and other governmental charges (Section 3.05)(Section 2.06). Unless otherwise indicated in the applicable Prospectus Supplement, the Company will not be required (i) to issue, register the transfer of or exchange Debt Securities of any particular series to be redeemed or exchanged for a period of 15 days preceding the first publication of the relevant notice of redemption or, if registered securities are outstanding and there is no publication, the mailing of the relevant notice of redemption or exchange, (ii) to register the transfer of or exchange any registered security so selected for redemption in whole or in part, except the unredeemed portion of any registered security being redeemed or exchanged in part, or (iii) to exchange any bearer security so selected for redemption except that such a bearer security may be exchanged for a registered security of that series of like tenor and terms, provided that such registered security shall be simultaneously surrendered for redemption. (Section 3.05)(Section 2.06). Global Securities The Debt Securities may be issued in whole or in part in the form of one or more global securities (each, a "Global Security") and deposited with a depositary (the "Depositary"), or a nominee thereof, identified in the applicable Prospectus Supplement. The specific terms of the depositary arrangement with respect to any portion of a series of Debt Securities to be represented by a Global Security will be described in the applicable Prospectus Supplement. The Company currently expects that the following provisions will apply to depositary arrangements. - 11 - Debt Securities issued as Global Securities may be issued in whole or in part in the form of one or more registered Global Securities registered in the name of the Depositary or a nominee thereof (each, a "Registered Global Security"). So long as the Depositary, or its nominee, is the registered owner of a Registered Global Security, the Depositary or its nominee, as the case may be, will be considered the sole owner or holder of the Debt Securities represented by such Registered Global Security for all purposes under the Indenture. Unless otherwise specified in the applicable Prospectus Supplement and except as otherwise provided in the applicable Indenture, owners of beneficial interests in the Debt Securities represented by such Registered Global Security will not (a) be entitled to have such Debt Securities registered in their names, (b) receive or be entitled to receive physical delivery of certificates representing such Debt Securities in definitive form, (c) be considered to be the owners or holders thereof under such Indenture or (d) have any rights under such Indenture with respect to such Registered Global Security. Accordingly, each person owning a beneficial interest in such Registered Global Security must rely on the procedures of the Depositary and, if such person is not a participant (as defined below) in such Depositary, on the procedures of the participant through which such person owns its interest, to exercise any rights of a holder under such Indenture. The Depositary may grant proxies and otherwise authorize participants to give or take any request, demand, authorization, direction, notice, consent, waiver or other action which a holder is entitled to give or take under an Indenture. Under existing industry practices, if the Company requests any action of holders or any owner of a beneficial interest in such Registered Global Security desires to give any notice or take any action a holder is entitled to give or take under an Indenture, the Depositary for such Registered Global Security would authorize the participants holding the relevant beneficial interests to give such notice or take such action, and such participants would authorize beneficial owners owning through such participants to give such notice or to take such action or would otherwise act upon the instructions of beneficial owners owning through them. Upon the issuance of any Registered Global Security, and the deposit of such Registered Global Security with or on behalf of the Depositary for such Registered Global Security, the Depositary will credit, on its book-entry registration and transfer system, the respective principal amounts of the Debt Securities represented by such Registered Global Security to the accounts of institutions ("participants") that have accounts with the Depositary or its nominee and who hold interests in such Debt Securities. The accounts to be credited will be designated by the underwriters or agents engaging in the distribution of such Debt Securities or by the Company, if such Debt Securities are offered and sold directly by the Company. Ownership of beneficial interests in a Registered Global Security will be limited to participants or persons that may hold interests through participants. Ownership of beneficial interests by participants in such Registered Global Security will be shown on, and the transfer of such beneficial interests will be effected only through, records maintained by the Depositary for such Registered Global Security or by its nominee. Ownership of beneficial interests in such Registered Global Security by persons that hold through participants will be shown on, and the transfer of such beneficial interests within such participants will be effected only through, records maintained by such participants. The laws of some jurisdictions require that certain purchasers of securities take physical delivery of such securities in certificated form. The foregoing limitations and - 12 - such laws may impair the ability of such purchasers to own, transfer or pledge beneficial interests in such Registered Global Securities. Unless otherwise specified in the applicable Prospectus Supplement, payments with respect to principal of (premium, if any, on), and interest, if any, on, Debt Securities represented by a Registered Global Security registered in the name of a Depositary or its nominee will be made to such Depositary or its nominee, as the case may be, as the registered owner of such Registered Global Security. The Company expects that the Depositary for any Debt Securities represented by a Registered Global Security, upon receipt of any payment of principal of (premium, if any, on), or interest on, such Registered Global Security, will immediately credit participants' accounts with payments in amounts proportionate to their respective beneficial interests in the principal amount of such Registered Global Security as shown on the records of such Depositary. The Company also expects that payments by participants to owners of beneficial interests in such Registered Global Security held through such participants will be governed by standing instructions and customary practices, and will be the responsibility of such participants. None of the Company, any Trustee or any agent of the Company or such Trustee shall have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Registered Global Security, or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests. Unless otherwise specified in the applicable Prospectus Supplement, if the Depositary for any series of Debt Securities represented by a Registered Global Security is at any time unwilling or unable to continue as Depositary or ceases to be a clearing agency registered under the Exchange Act, and a successor Depositary registered as a clearing agency under the Exchange Act is not appointed by the Company within 90 days, the Company will issue such Debt Securities in definitive certificated form in exchange for such Registered Global Security. The Debt Securities of a series may also be issued in whole or in part in the form of one or more bearer Global Securities (a "Bearer Global Security") that will be deposited with a Depositary, or a nominee thereof, identified in the applicable Prospectus Supplement. Any such Bearer Global Securities may be issued in temporary or permanent form. The specific terms and procedures, including the specific terms of the depositary arrangement, with respect to any portion of a series of Debt Securities to be represented by one or more Bearer Global Securities will be described in the applicable Prospectus Supplement. Unless and until it is exchanged in whole or in part for individual certificates evidencing the Debt Securities represented thereby, a Global Security may not be transferred except as a whole by the Depositary for such Global Security to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by the Depositary or any nominee to a successor depositary or any nominee of such successor. The Company, in its sole discretion, may at any time determine that Debt Securities shall no longer be represented by such Global Security and such Global Security shall thereupon be exchanged for securities in definitive form pursuant to the applicable Indenture. - 13 - Defeasance The Senior Indenture and the Subordinated Indenture provide that the Company, at its option, (a) will be discharged from all obligations in respect of the Debt Securities of a series (except for certain obligations to register the transfer or exchange of such Debt Securities, replace stolen, lost or destroyed Debt Securities, maintain paying agencies and hold moneys for payment in trust), or (b) need not comply with certain covenants of the Senior and the Subordinated Indenture, in each case if the Company irrevocably deposits in trust with the Trustee money or obligations of or guaranteed by the United States of America which through the payment of interest thereon and principal thereof in accordance with their terms will provide money, in an amount sufficient to pay all of the principal of (including any mandatory redemption payments), premium, if any, and interest, if any, on, and repurchase obligations, if any, with respect to, the Debt Securities of such series on the dates such payments are due in accordance with the terms of such Debt Securities. To exercise either such option, the Company is required to deliver to the Trustee an opinion of independent tax counsel (which may be counsel to the Company) to the effect that the deposit and related defeasance would not cause the holders of the Debt Securities of such series to recognize income, gain or loss for Federal income tax purposes. To exercise the option described in clause (a) above, such opinion must be based either on a ruling of the Internal Revenue Service or a change in the applicable Federal income tax law(Article Fifteen). Information Concerning the Trustee Chemical Trust Company of California, the Trustee under each of the Indentures, is also the trustee with respect to $150 million in aggregate principal amount of the Company's 7 3/8% senior notes due 2003 (the "7 3/8% Notes"), $100 in aggregate principal amount of the Company's 7 1/4% senior notes due 2005 (the 7 1/4% Notes" and, collectively with the 7 3/8% Notes, the "Senior Notes"), and $10.6 million in aggregate principal amount of the Company's 6 7/8% Exchangeable Subordinated Debentures due 2011 (the "6 7/8% Debentures"), is the rights agent under the Company's Shareowner Rights Plan. An affiliate of the Trustee is the transfer agent, registrar and dividend disbursing agent for the Company's Class A Common Stock. The Company also maintains banking relationships in the ordinary course of business with an affiliate of the Trustee. The occurrence of a default under either the Indentures or under the indentures governing the Senior Notes or the 6 7/8% Debentures could create a conflicting interest for the Trustee under the Trust Indenture Act of 1939, as amended by the Trust Indenture Reform Act of 1990 (the "Trust Indenture Act"). If the default has not been cured or waived within 90 days after the Trustee acquires a conflicting interest, the Trustee generally will be required by the Trust Indenture Act to eliminate such conflicting interest or resign as Trustee with respect to the affected Debt Securities, the 7 3/8% Notes, 7 1/4% Notes and/or the 6 7/8% Debentures, as the case may be. In the event of the Trustee's resignation, the Company will promptly appoint a successor trustee with respect to any affected Debt Securities. - 14 - Should the Company determine to appoint a successor trustee for any reason prior to the issuance of a particular series of Debt Securities, information regarding such successor trustee will be set forth in the applicable Prospectus Supplement. SENIOR DEBT SECURITIES The Senior Debt Securities will be direct, unsecured obligations of the Company and will rank as to priority of payment with all outstanding unsubordinated and unsecured indebtedness of the Company. Following is a description of certain terms of Senior Debt Securities other than LYONs. If LYONs are offered by the Company, a description of LYONs will be set forth in the applicable Prospectus Supplement. Certain Covenants If material restrictive covenants are undertaken by the Company with respect to a particular series of Senior Debt Securities, including LYONs offered as Senior Debt Securities, such covenants will be described in the applicable Prospectus Supplement and will be added to the Senior Indenture or LYONs Indenture by means of an indenture supplement. Events of Default Unless otherwise specified in an applicable Prospectus Supplement, Events of Default with respect to any series of Senior Debt Securities under the Senior Indenture will include: (a) default in the payment of any principal of, or any premium on, such series; (b) default in the payment of any installment of interest on such series and continuance of such default for a period of 30 days; (c) default with respect to any obligation to make payments to a sinking fund or analogous obligation when the same becomes due by the terms of such series; (d) default in the performance of any other covenant in the Senior Indenture with respect to such series and continuance of such default for a period of 90 days after receipt by the Company of notice of such default from the Senior Trustee or receipt by the Company and the Senior Trustee of notice of such default from the holders of at least 25% in aggregate principal amount of Senior Debt Securities of such series then outstanding; (e) acceleration or non-payment at maturity of (i) indebtedness for borrowed money of the Company or any subsidiary or (ii) any guarantee of payment by the Company or any subsidiary of any obligation of any Person, in either case in excess of $15,000,000, which acceleration or non-payment is not cured, waived, rescinded or annulled, or such indebtedness or guarantee is not discharged, within 15 days after receipt of comparable written notice; or (f) certain events of bankruptcy, insolvency or reorganization in respect of the Company (Section 5.01). The Senior Trustee may withhold notice to the holders of a series of Senior Debt Securities of any default (except in the payment of principal of, premium, if any, on or interest, if any, on such series of Senior Debt Securities) if it considers such withholding to be in the interests of holders of the Senior Debt Securities (Section 6.02). Events of Default with respect to a particular series of Senior Debt Securities issued under the Senior Indenture will not necessarily constitute Events of Default with respect to any other series of Senior Debt Securities. - 15 - On the occurrence of an Event of Default with respect to a series of Senior Debt Securities, the Senior Trustee or the holders of at least 25% in aggregate principal amount of the Senior Debt Securities of such series then outstanding may declare the principal (or in the case of Senior Debt Securities sold at an original issue discount, the amount specified in the terms thereof) and accrued interest thereon to be due and payable immediately (Section 5.02). Within 120 days after the end of each fiscal year, an officer of the Company must inform the Senior Trustee whether such officer knows of any default and must describe any such default and the status thereof (Section 10.06). Subject to provisions relating to its duties in case of default, the Senior Trustee is under no obligation to exercise any of its rights or powers under the Senior Indenture at the direction of any holders of Senior Debt Securities unless the Senior Trustee shall have received a satisfactory indemnity (Section 6.03). SUBORDINATED DEBT SECURITIES The Subordinated Debt Securities will be direct, unsecured obligations of the Company and will be subordinated in right of payment, as set forth in the Subordinated Indenture, to the prior payment in full of all existing and future Senior Indebtedness (Section 16.01) or of such Senior Indebtedness as may be specified in an indenture supplement relating to a particular series of Subordinated Debt Securities. Following is a description of certain terms of Subordinated Debt Securities other than LYONs. If LYONs are offered by the Company, a description of LYONs will be set forth in the applicable Prospectus Supplement. "Senior Indebtedness" means the principal of and any premium and interest on (a) all indebtedness of, or guaranteed by, the Company (other than (i) the Subordinated Debt Securities, (ii) securities issued pursuant to the Company's Subordinated Indenture dated as of December 1, 1992 and (iii) the 6 7/8% Debentures (collectively, the "Pari Passu Debt")), whether outstanding on the date of the Subordinated Indenture or thereafter created, incurred or assumed, that is (A) for money borrowed or (B) evidenced by a note or similar instrument given in connection with the acquisition of any businesses, properties or assets of any kind, except in the ordinary course of business, (b) all obligations of the Company as lessee under capitalized leases or leases of property made as part of any sale and leaseback transaction, and (c) all amendments, renewals, extensions, modifications and refundings of any such indebtedness or obligations, unless in any of the foregoing cases in the instrument creating or evidencing any such indebtedness or obligation or pursuant to which the same is outstanding it is provided that such indebtedness or obligation is not superior in right of payment to the Subordinated Debt Securities or to any Pari Passu Debt (Section 1.01). By reason of such subordination, in the event of dissolution, insolvency, bankruptcy or other similar proceedings, upon any distribution of assets, (i) the holders of all Senior Indebtedness shall first be entitled to receive payment in full of all amounts due or to become due thereon, or to require that payment of all such amounts shall have been provided for, before the holders of Subordinated Debt Securities shall be entitled to receive any payment or distribution with respect to such Subordinated Debt Securities, (ii) the holders of Subordinated Debt Securities will be required to pay over their share of such - 16 - distribution in respect of the Subordinated Debt Securities to the holders of Senior Indebtedness until such Senior Indebtedness is paid in full and (iii) creditors of the Company who are not holders of Senior Indebtedness may recover less, ratably, than holders of Senior Indebtedness and may recover more, ratably, than holders of Subordinated Debt Securities (Section 16.02). As of September 30, 1995, outstanding Senior Indebtedness amounted to approximately $514.0 million, consisting of (i) $354.7 million aggregate indebtedness attributable to the Senior Notes and a series of senior notes in the aggregate principal amount of $100,000,000 which matured on January 15, 1996 and (ii) $159.3 million of indebtedness of a subsidiary guaranteed by the Company. At that date, the Company had available to it an additional $190.7 million which could be borrowed by such subsidiary under an existing revolving line of credit and which, once borrowed, would be supported by the Company's guarantee. The Company's subsidiaries have sold receivables, with recourse, to financial institutions. The Company is contingently liable as guarantor with respect to such receivables. In the event that such receivables financing arrangements are deemed to constitute lending arrangements, the Company's contingent obligations with respect to such receivables would constitute Senior Indebtedness. As of September 30, 1995, approximately $23.0 million of receivables were subject to such financing. The Subordinated Debt Securities will rank pari passu with outstanding subordinated debt of the Company, which, at September 30, 1995, aggregated approximately $10.7 million. The Subordinated Debt Securities, as well as the Senior Debt Securities, will be effectively subordinated to all liabilities, including trade payables, of the Company's subsidiaries. See "Description of Debt Securities-General". There are no restrictions in the Subordinated Indenture on the creation of additional indebtedness, including Senior Indebtedness. Events of Default Unless otherwise specified in an applicable Prospectus Supplement, Events of Default with respect to any series of Subordinated Debt Securities under the Subordinated Indenture will include: (a) default in the payment of any principal of, or any premium on, such series; (b) default in the payment of any installment of interest on such series and continuance of such default for a period of 30 days; (c) default with respect to any obligation to make payments to a sinking fund or analogous obligation when the same becomes due by the terms of such series; (d) default in the performance of any other covenant in the Subordinated Indenture with respect to such series and continuance of such default for a period of 90 days after receipt by the Company of notice of such default from the Subordinated Trustee or receipt by the Company and the Subordinated Trustee of notice of such default from the holders of at least 25% in aggregate principal amount of Subordinated Debt Securities of such series then outstanding; (e) an Event of Default with respect to an outstanding series of Senior Debt Securities resulting from (i) default in the performance of certain covenants in the Senior Indenture or (ii) acceleration or non-payment at maturity of certain indebtedness of the Company or its subsidiaries or of certain guarantees of payment by the Company or its subsidiaries, as described - 17 - herein under "Senior Debt Securities -- Events of Default"; or (f) certain events of bankruptcy, insolvency or reorganization in respect of the Company (Section 5.01). The Subordinated Trustee may withhold notice to the holders of a series of Subordinated Debt Securities of any default (except in the payment of principal of, premium, if any, on or interest, if any, on such series of Subordinated Debt Securities) if it considers such withholding to be in the interest of holders of the Subordinated Debt Securities (Section 6.02). Events of Default with respect to a particular series of Subordinated Debt Securities issued under the Subordinated Indenture will not necessarily constitute Events of Default with respect to any other series of Subordinated Debt Securities. On the occurrence of an Event of Default with respect to a series of Subordinated Debt Securities, the Subordinated Trustee or the holders of at least 25% in aggregate principal amount of Subordinated Debt Securities of such series then outstanding may declare the principal (or in the case of Subordinated Debt Securities sold at an original issue discount, the amount specified in the terms thereof) and accrued interest thereon to be due and payable immediately (Section 5.02). Within 120 days after the end of each fiscal year, an officer of the Company must inform the Subordinated Trustee whether such officer knows of any default, describing any such default and the status thereof (Section 10.06). Subject to provisions relating to its duties in case of default, the Subordinated Trustee is under no obligation to exercise any of its rights or powers under the Subordinated Indenture at the direction of any holders of Subordinated Debt Securities unless the Subordinated Trustee shall have received a satisfactory indemnity (Section 6.03). DESCRIPTION OF CLASS A COMMON STOCK The following description of the Class A Common Stock sets forth certain general terms and provisions of the Class A Common Stock to which any Prospectus Supplement may relate, including a Prospectus Supplement providing that Class A Common Stock will be issuable by the Company upon conversion of Debt Securities or Preferred Stock. The statements below describing the Class A Common Stock are in general terms and are in all respects subject to and qualified in their entirety by reference to the applicable provisions of the Company's Certificate of Incorporation and By-Laws. The Company has the authority to issue 103,000,000 shares of capital stock, of which 100,000,000 are Class A Common Stock, par value $1.50 per share, and 3,000,000 are Preferred Stock, no par value. At September 30, 1995, the Company had outstanding 39,828,516 shares of Class A Common Stock and had no outstanding shares of Preferred Stock. Holders of Class A Common Stock are entitled to receive, equally and ratably, such dividends as are declared by the Board of Directors, subject to the preference of any outstanding Preferred Stock, and are entitled to cast one vote per share on all matters voted upon by stockholders. There is no cumulative voting for the election of directors and the Class A Common Stock does not have any pre-emptive rights. Upon liquidation of the Company, holders of Class A Common Stock are entitled to share equally and ratably in any assets - 18 - available for distribution to them, after payment or provision for liabilities and amounts owing with respect to any outstanding Preferred Stock. Payment and declaration of dividends on the Class A Common Stock will be subject to restrictions if the Company fails to pay dividends on any series of Preferred Stock ranking prior to the Class A Common Stock as to the payment of dividends. See "Description of Preferred Stock." The registrar, transfer agent and dividend disbursing agent for the Class A Common Stock is Chemical Mellon Shareholder Services LLC. DESCRIPTION OF WARRANTS The Company may issue Warrants for the purchase of Debt Securities, Preferred Stock or Class A Common Stock. Warrants may be issued independently or together with any securities offered by any Prospectus Supplement and may be attached to or separate from such securities. Each series of Warrants will be issued under a separate warrant agreement (each, a "Warrant Agreement") to be entered into between the Company and a warrant agent ("Warrant Agent"), all as set forth in the Prospectus Supplement relating to the particular issue of Warrants. The Warrant Agent will act solely as an agent of the Company in connection with the Warrants of such series and will not assume any obligation or relationship of agency or trust for or with any holders or beneficial owners of Warrants. The following summaries of certain provisions of the forms of Warrant Agreements and Warrant certificates do not purport to be complete and are subject to, and are qualified in their entirety by reference to, all the provisions of the Warrant Agreements and the Warrant certificates, as well as by reference to any applicable Prospectus Supplement. General If Debt Securities Warrants are offered, the applicable Prospectus Supplement will describe the terms of such Warrants, the Warrant Agreement relating to such Warrants and the certificates representing such Warrants, including, where applicable, the following: (i) the title, offering price and aggregate number of such Debt Securities Warrants; (ii) the title, rank, aggregate principal amount, denominations and terms of the Debt Securities purchasable upon exercise of such Debt Securities Warrants and the procedures and conditions relating to the exercise of such Debt Securities Warrants; (iii) the designation and terms of any related series of securities with which such Debt Securities Warrants are being offered and the number of such Debt Securities Warrants being offered with each such security; (iv) the date, if any, on and after which such Debt Securities Warrants and the related series of securities will be transferable separately; (v) the principal amount of the series of Debt Securities purchasable upon exercise of each such Debt Securities Warrant, the price, or the manner of determining the price, at which such principal amount of Debt Securities of such series may be purchased upon such exercise and whether such Debt Securities may be purchased for consideration other than cash; (vi) the time or times, or period or periods, in which such Debt Securities Warrants may be exercised and the date (the "Expiration Date") on which such exercise right shall expire; (vii) whether the Warrant - 19 - certificates will be issued in registered or bearer form and information regarding any transfer, registration and book-entry procedures; (viii) any anti-dilution provisions applicable to such Debt Securities Warrants; (ix) United States federal income tax consequences; (x) the terms of any right of the Company to redeem or accelerate the exercisability of such Debt Securities Warrants; and (xi) any other terms of such Debt Securities Warrants. In the case of Warrants for the purchase of Preferred Stock or Class A Common Stock, the applicable Prospectus Supplement will describe the terms of such Warrants, the Warrant Agreement relating to such Warrants and the certificates representing such Warrants, including, where applicable, the following: (i) the title, offering price and aggregate number of such Warrants; (ii) in the case of Preferred Stock Warrants, the designation and terms of the series of Preferred Stock purchasable upon exercise of such Preferred Stock Warrants and whether such series of Preferred Stock is convertible or exchangeable into or for other securities; (iii) the aggregate number of shares of such series of Preferred Stock or Class A Common Stock purchasable on exercise of each such Warrant and the price, or manner of determining the price, at which such number of shares may be purchased; (iv) the designation and terms of any related series of securities with which such Warrants are being offered and the number of such Warrants being offered with each such security; (v) the date, if any, on and after which such Warrants and the related series of securities will be transferable separately; (vi) any minimum number of Warrants exercisable at one time; (vii) the time or times, or period or periods, in which such Warrants shall be exercisable and the Expiration Date; (viii) the terms of any right of the Company to redeem or accelerate the exercisability of such Warrants; (ix) whether the Warrant certificates will be issued in registered or bearer form and information regarding any transfer, registration and book-entry procedures; (x) any anti-dilution provisions applicable to such Warrants; (xi) United States federal income tax consequences; and (xi) any other terms of such Warrants. Warrants may be exchanged for new Warrants of different denominations, may (if in registered form) be presented for registration of transfer and may be exercised at the corporate trust office of the Warrant Agent or any other office indicated in the applicable Prospectus Supplement. No service charge will be made for any permitted transfer or exchange of Warrant certificates, but the Company may require payment of any tax or other governmental charge payable in connection therewith. Prior to the exercise of any Warrant to purchase Debt Securities, holders of such Warrants will not have any of the rights of holders of the Debt Securities purchasable upon such exercise, including the right to receive payments of principal of (or premium, if any) or interest, if any, on the Debt Securities purchasable upon such exercise or to enforce any covenants in the applicable Indenture. Prior to the exercise of any Warrants to purchase Preferred Stock or Class A Common Stock, holders of such Warrants will not have any rights of holders of Preferred Stock or Class A Common Stock purchasable upon such exercise, including the right to receive payments of dividends, if any, on the Preferred Stock or Class A Common Stock purchasable upon such exercise or to exercise any applicable right to vote. - 20 - Exercise of Warrants Each Warrant will entitle the holder thereof to purchase such principal amount of Debt Securities or number of shares of Preferred Stock or Class A Common Stock, as the case may be, at such exercise price as shall in each case be set forth, or calculable in the manner provided, in the offered Warrants and described in the Prospectus Supplement relating thereto. After the close of business on the Expiration Date (or such later date to which such Expiration Date may be extended by the Company), unexercised Warrants will become void. Warrants may be exercised by delivering payment to the Warrant Agent as provided in the applicable Prospectus Supplement of the amount required to purchase the underlying Debt Securities, Preferred Stock or Class A Common Stock, as the case may be, purchasable upon such exercise together with certain information set forth on the reverse side of the Warrant. Warrants will be deemed to have been exercised upon receipt of payment of the exercise price, subject to the receipt, within five business days, of the Warrant certificate evidencing such Warrants. Upon receipt of such payment and such Warrant certificate properly completed and duly executed at the corporate trust office of the Warrant Agent or any other office indicated in the applicable Prospectus Supplement, the Company will, as soon as practicable, issue and deliver the Debt Securities, Preferred Stock or Class A Common Stock, as the case may be, purchasable upon such exercise. If fewer than all of the Warrants represented by such Warrant certificate are exercised, a new Warrant certificate will be issued for the remaining amount of Warrants. The holder of a Warrant will be required to pay any tax or other governmental charge that may be imposed in connection with any transfer involved in the issuance of underlying Debt Securities, Preferred Stock or Class A Common Stock purchased upon such exercise. Modifications The Warrant Agreements and the terms of the Warrants may be modified or amended by the Company and the Warrant Agent, without the consent of any holder, for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective or inconsistent provision contained therein, or in any other manner that the Company deems necessary or desirable and that will not materially adversely affect the interests of the holders of the Warrants. The Company and the Warrant Agent may also modify or amend the Warrant Agreement and the terms of the Warrants with the consent of the holders of not less than a majority in number of the then outstanding unexercised Warrants affected thereby; provided that no such modification or amendment that accelerates the Expiration Date, increases the exercise price, reduces the number of outstanding Warrants the consent of the holders of which is required for any such modification or amendment, or otherwise materially adversely affects the rights of the holders of the Warrants, may be made without the consent of each holder affected thereby. Warrant Adjustments The terms and conditions on which the exercise price of and/or the number of shares of Preferred Stock or Class A Common Stock covered by a Warrant are subject to adjustment will be set forth in the Warrant certificate and the applicable Prospectus Supplement. Such terms will include provisions for adjusting the exercise price and/or the number of shares of Preferred Stock or - 21 - Class A Common Stock covered by such Warrant; the events requiring such adjustment; the events upon which the Company may, in lieu of making such adjustment, make proper provisions so that the holder of such Warrant, upon exercise thereof, would be treated as if such holder had exercised such Warrant prior to the occurrence of such events; and provisions affecting exercise in the event of certain events affecting the Preferred Stock or Class A Common Stock. DESCRIPTION OF PREFERRED STOCK The Company is authorized to issue 3,000,000 shares of Preferred Stock, no par value, none of which were outstanding at September 30, 1995. Under the Company's Certificate of Incorporation, the Board of Directors may from time to time establish and issue one or more series of Preferred Stock and fix the designations, powers, preferences and rights of the shares of such series and the qualification, limitations or restrictions thereon, including, but not limited to, the fixing of the dividend rights, dividend rate or rates, conversion and exchange rights, voting rights, rights and terms of redemption (including sinking fund provisions), the redemption price or prices, and the liquidation preferences, in each case, of any wholly unissued series of shares of Preferred Stock. Any such series may rank junior to, on a parity with or (subject to voting rights) senior to any other such series with respect to dividends, distributions and liquidation, and any such series may have greater or lesser voting rights than any other such series. Because the Company is a holding company, its rights, the rights of its creditors and of its shareowners, including the owners of the shares of the Preferred Stock, to participate in any distribution of the assets of any subsidiary upon the latter's liquidation or recapitalization will be subject to the prior claims of the subsidiary's creditors, except to the extent that the Company may itself be a creditor with recognized claims against the subsidiary. The principal sources of the Company's revenues are derived from its operating subsidiaries. The subsidiaries are separate and distinct legal entities and, except to the extent, if any, described in a Prospectus Supplement pertaining to particular Offered Securities, will have no obligation, contingent or otherwise, to pay any amounts or to make any funds available to the Company, whether by dividends, loans or other payments. In addition, the payment of dividends and certain loans and advances to the Company by such subsidiaries may be subject to certain statutory or contractual restrictions, are contingent upon the earnings of such subsidiaries and are subject to various business considerations. The following description of the Preferred Stock sets forth certain terms and provisions of the Preferred Stock to which any Prospectus Supplement may relate. The statements below describing the Preferred Stock are in general terms and are in all respects subject to and qualified in their entirety by reference to the applicable provisions of the Company's Certificate of Incorporation (including the applicable Certificate of Amendment describing a particular series) and the Company's By-Laws. - 22 - Dividends Holders of shares of the Preferred Stock of each series shall be entitled to receive, when, as and if declared by the Board of Directors of the Company, out of assets of the Company legally available for payment, cash dividends at such rates and on such dates as will be set forth in the applicable Prospectus Supplement. Each such dividend shall be payable to holders of record as they appear on the stock books of the Company on such record dates as shall be fixed by the Board of Directors of the Company. Dividends on any series of the Preferred Stock may be cumulative or non-cumulative, as provided in the Certificate of Amendment relating to such series and described in the applicable Prospectus Supplement. If the Board of Directors of the Company fails to declare a dividend payable on a dividend payment date on any series of the Preferred Stock for which dividends are non-cumulative, then the holders of such series of the Preferred Stock will have no rights to receive a dividend in respect of the dividend period ending on such dividend payment date, and the Company will have no obligation at any subsequent time to pay the dividend accrued for such period, whether or not dividends on such series are declared payable on any future dividend payment date. If shares of the Preferred Stock of any series are outstanding, no full dividends shall be declared or paid or set apart for payment on the Preferred Stock of the Company of any other series ranking, as to dividends, on a parity with or junior to the Preferred Stock of such series for any period unless full cumulative dividends have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for such payment on the Preferred Stock of such series for all dividend periods terminating on or prior to the date of payment of such full cumulative dividends. When dividends are not paid in full upon the shares of Preferred Stock of any series and the shares of any other series of Preferred Stock ranking on a parity as to dividends with the Preferred Stock of such series, all dividends declared upon shares of Preferred Stock of such series and any other series of Preferred Stock ranking on a parity as to dividends shall be declared pro rata so that the amount of dividends declared per share on the Preferred Stock of such series and such other series of Preferred Stock shall in all cases bear to each other the same ratio that accrued cumulative dividends per share on the shares of Preferred Stock of such series and such other series of Preferred Stock bear to each other. Unless otherwise provided in an applicable Prospectus Supplement, holders of shares of Preferred Stock of any series shall not be entitled to any dividends, whether payable in cash, property or stock, in excess of full cumulative dividends, payable as herein provided, on the Preferred Stock of such series and no interest, or sum of money in lieu of interest, shall be payable in respect of any dividend payment or payments of Preferred Stock of such series which may be in arrears. Except as provided in the second preceding sentence, unless full cumulative dividends on the Preferred Stock of any series have been declared and paid or set apart for payment for all past dividend periods, no dividends (other than in stock ranking junior to the Preferred Stock of such series as to dividends and upon liquidation) shall be declared or paid or set aside for payment or other distribution declared or made upon stock of the Company ranking junior to or on a parity with the Preferred Stock of such series as to dividends or upon liquidation, nor shall any stock of the Company ranking junior to or on a parity with the Preferred Stock of such series as to dividends or upon liquidation be redeemed, purchased or otherwise acquired for any - 23 - consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any shares of any such stock) by the Company (except by conversion into or exchange for stock of the Company ranking junior to the Preferred Stock of such series as to dividends and upon liquidation). Unless otherwise indicated in an applicable Prospectus Supplement, all series of Preferred Stock offered hereby will be senior in right as to dividends and in liquidation to the Class A Common Stock. Any dividend payment made on shares of a series of Preferred Stock shall first be credited against the earliest accrued but unpaid dividend due with respect to shares of such series which remains payable. Redemption The shares of Preferred Stock will be redeemable at the option of the Company, as a whole or in part, at the times and at the redemption prices set forth in the Certificate of Amendment relating to such series and described in the applicable Prospectus Supplement. Notwithstanding the foregoing, unless full cumulative dividends on all outstanding shares of any series of Preferred Stock shall have been paid or contemporaneously are declared and paid for all past dividend periods, no shares of any series of Preferred Stock shall be redeemed unless all outstanding shares of Preferred Stock of such series are simultaneously redeemed; provided, however, that the foregoing shall not prevent the purchase or acquisition of shares of Preferred Stock of such series or of shares of such other series of Preferred Stock pursuant to a purchase or exchange offer made on the same terms to holders of all outstanding shares of Preferred Stock of such series, and unless the full cumulative dividends on all outstanding shares of any cumulative Preferred Stock of such series and any other stock of the Company ranking on a parity with such series as to dividends and upon liquidation shall have been paid or contemporaneously are declared and paid for all past dividend periods, the Company shall not purchase or otherwise acquire directly or indirectly any shares of Preferred Stock of such series (except by conversion into or exchange for stock of the Company ranking junior to the Preferred Stock of such series as to dividends and upon liquidation.) Unless otherwise indicated in the applicable Prospectus Supplement, notice of redemption will be mailed at least 30 days but not more than 60 days before the redemption date to each holder of record of shares of Preferred Stock to be redeemed at the address shown on the stock transfer books of the Company. After the redemption date, dividends will cease to accrue on the shares of Preferred Stock called for redemption and all rights of the holders of such shares will terminate, except the right to receive the redemption price without interest. Liquidation Preference Upon any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company, then, before any distribution or payment shall be made to the holders of any stock over which a series of Preferred Stock has - 24 - preference or priority in the distribution of assets on any liquidation, dissolution or winding up of the Company, the holders of such series of Preferred Stock shall be entitled to be paid in full an amount equal to the liquidation preference per share (as set forth in the applicable Prospectus Supplement), plus an amount equal to all dividends accrued and unpaid thereon. Except as otherwise provided in the Certificate of Amendment relating to such series and described in an applicable Prospectus Supplement, after payment of the full amount of the liquidating distributions to which they are entitled, the holders of Preferred Stock will have no right or claim to any of the remaining assets of the Company. In the event that, upon any such voluntary or involuntary liquidation, dissolution or winding up, the available assets of the Company are insufficient to pay such amount on all outstanding shares of a series of Preferred Stock and the corresponding amounts payable on all shares of other classes or series of stock of the Company ranking on a parity with such series of Preferred Stock in the distribution of assets, then the holders of such series of Preferred Stock and of all other such classes or series shall share ratably in any distribution of assets in proportion to the full amounts to which they would otherwise be respectively entitled. If such payment shall have been made in full to all holders of shares of such series of Preferred Stock, the remaining assets of the Company shall be distributed among the holders of any other classes or series of stock ranking junior to such series of Preferred Stock upon liquidation, dissolution or winding up, according to their respective rights and preferences and in each case according to their respective number of shares. For such purposes, the consolidation or merger of the Company with or into any other corporation, or the sale, lease or conveyance of all or substantially all of the property or business of the Company, shall not be deemed to constitute a liquidation, dissolution or winding up of the Company. Voting Rights Holders of the Preferred Stock will not have any voting rights, except as set forth below or as otherwise from time to time required by law or as otherwise provided in the related Certificate of Amendment and described in the applicable Prospectus Supplement. Unless otherwise provided in a Prospectus Supplement relating to shares of Preferred Stock, so long as any shares of Preferred Stock remain outstanding, the Company will not, without the affirmative vote or consent of the holders of a majority of the shares of each series of Preferred Stock outstanding at the time, given in person or by proxy, either in writing or at a meeting (such series voting separately as a class), (i) authorize, create or issue, or increase the authorized or issued amount of, any class or series of stock ranking prior to such series of Preferred Stock with respect to payment of dividends or the distribution of assets on liquidation, dissolution or winding up or reclassify any authorized stock of the Company into any such prior shares, or create, authorize or issue any obligation or security convertible into or evidencing the right to purchase any such prior shares; or (ii) amend, alter or repeal the provisions of the Company's Certificate of Incorporation, whether by merger, consolidation or otherwise, so as to materially and adversely affect any right, preference, privilege or voting power of such series of Preferred Stock or the holders thereof; provided, however, that any increase in the amount of the authorized shares of Preferred Stock or the creation or issuance of other series of Preferred Stock, or any increase in the amount of authorized shares of such series or of any other series of Preferred Stock, in each case ranking on a - 25 - parity with or junior to the Preferred Stock of such series, shall not be deemed to materially and adversely affect such rights, preferences, privileges or voting powers. The foregoing voting provisions will not apply if, at or prior to the time when the act with respect to which such vote would otherwise be required shall be effected, all outstanding shares of the Preferred Stock shall have been redeemed or called for redemption and sufficient funds shall have been deposited in trust to effect such redemption. Unless otherwise provided in the related Certificate of Amendment and described in the applicable Prospectus Supplement, the Company's Certificate of Incorporation may be amended to increase the number of authorized shares of Preferred Stock without the vote of the holders of outstanding shares of Preferred Stock. Conversion and Exchange The Prospectus Supplement for any series of Preferred Stock will describe the provisions in the related Certificate of Amendment that set forth the conditions or terms, if any, upon which any such series will be convertible or exchangeable, and the terms of the securities into which such series will be convertible or exchangeable. If the conversion price or terms of exchange for a series of Preferred Stock is subject to adjustment upon the occurrence of certain events, the formulas for such adjustment will be set forth in the related Certificate of Amendment and described in the applicable Prospectus Supplement. Conversion price adjustments or omissions in making such adjustments may, under certain circumstances, be deemed to be distributions that could be taxable as dividends under the Internal Revenue Code. Unless otherwise provided in the related Certificate of Amendment and described in the applicable Prospectus Supplement, if a series of Preferred Stock is convertible into another security ("Convertible Preferred Stock"), holders of such Convertible Preferred Stock will have the right, at their option and at any time, to convert any of such Convertible Preferred Stock, initially at the conversion price set forth in the Prospectus Supplement relating to such Convertible Preferred Stock, provided that, if such series of Convertible Preferred Stock is called for redemption, the conversion rights pertaining thereto will terminate at the close of business on the business day immediately preceding the date fixed for redemption. No fractional shares will be issued upon conversion of shares of any series of Convertible Preferred Stock, but if such conversion results in a fraction, an equivalent amount will be paid in cash by the Company on such basis as shall be set forth in the Certificate of Amendment relating to such series and described in the applicable Prospectus Supplement. Shares of Preferred Stock surrendered for conversion during the period from the close of business on any regular record date next preceding any dividend payment date to the opening of business on such dividend payment date (except shares of Preferred Stock called for redemption) must be accompanied by payment of an amount equal to the dividend or distribution on such payment date on the shares of Preferred Stock so converted. In the case of any shares of Preferred Stock which have been converted after any regular record date but on or before - 26 - the next dividend payment date (except shares of Preferred Stock called for redemption within such period), the dividend or distribution payable on such payment date shall be paid notwithstanding such conversion, and such dividend shall be paid or distribution made to the holder of such shares of Preferred Stock on such regular record date. Except as described above, no dividend or distribution on converted shares of Preferred Stock will be payable by the Company on any dividend payment date subsequent to the date of conversion. No other payment or adjustment for dividends or distributions will be made upon conversion. DESCRIPTION OF DEPOSITARY SHARES The description set forth below and in any Prospectus Supplement of the material general provisions of the Deposit Agreement (as defined below) and of the Depositary Shares and Depositary Receipts do not purport to be complete and are subject to and qualified in their entirety by reference to the Deposit Agreement and Depositary Receipts relating to each series of Preferred Stock subject to a Deposit Agreement, which Deposit Agreement (including the form of Depositary Receipt) will be filed with the Commission and incorporated by reference as an exhibit to the Registration Statement of which this Prospectus is a part at or prior to the time of the issuance of such series of the Preferred Stock. Further material provisions of the Depositary Shares will be summarized in the Prospectus Supplement relating thereto. General The Company may, at its option, elect to offer fractional shares of Preferred Stock. In the event such option is exercised, the Company will offer to the public receipts for Depositary Shares, each of which will represent a fraction (to be set forth in the Prospectus Supplement relating to a particular series of the Preferred Stock) of a share of a particular series of the Preferred Stock as described below. The shares of any series of the Preferred Stock represented by Depositary Shares will be deposited under a separate deposit agreement (the "Deposit Agreement") among the Company, a bank or trust company selected by the Company (the "Share Depositary") and the holders from time to time of the Depositary Receipts. Subject to the terms of the Deposit Agreement, each owner of a Depositary Share will be entitled, in proportion to the applicable fraction of a share of Preferred Stock represented by such Depositary Share, to all the rights and preferences of the Preferred Stock represented thereby (including dividend, voting, redemption and liquidation rights). The Depositary Shares relating to any series of the Preferred Stock will be evidenced by Depositary Receipts issued pursuant to the related Deposit Agreement. Depositary Receipts will be distributed to those persons purchasing such Depositary Shares in accordance with the terms of the offering made by the related Prospectus Supplement. - 27 - Upon surrender of Depositary Receipts at the office of the Share Depositary and upon payment of the charges provided in the Deposit Agreement and subject to the terms thereof, a holder of Depositary Receipts is entitled to have the Share Depositary deliver to such holder the whole shares of Preferred Stock underlying the Depositary Shares evidenced by the surrendered Depositary Receipts. Dividends and Other Distributions The Share Depositary will distribute all cash dividends or other cash distributions received in respect of the Preferred Stock to the record holders of Depositary Receipts relating to such Preferred Stock in proportion, insofar as practicable, to the respective numbers of Depositary Shares evidenced by such Depositary Receipts held by such holders on the relevant record date. The Share Depositary shall distribute only such amount, however, as can be distributed without attributing to any holder of Depositary Receipts a fraction of one cent, and any balance not so distributed shall be added to and treated as part of the next sum received by the Share Depositary for distribution to record holders of Depositary Receipts then outstanding. In the event of a distribution other than in cash, the Share Depositary will distribute such amounts of the securities or property received by it as are, as nearly as practicable, in proportion to the respective numbers of Depositary Shares evidenced by the Depositary Receipts held by such holders on the relevant record date, unless the Share Depositary determines that it is not feasible to make such distribution, in which case the Share Depositary may, with the approval of the Company, adopt such method as it deems equitable and practicable for the purpose of effecting such distribution, including the sale of such securities or property. The Deposit Agreement will also contain provisions relating to the manner in which any subscription or similar rights offered by the Company to holders of the Preferred Stock shall be made available to holders of Depositary Receipts relating to such Preferred Stock. The amount distributed in all of the foregoing cases will be reduced by any amounts required to be withheld by the Company or the Share Depositary on account of taxes and governmental charges. Redemption of Depositary Shares If a series of the Preferred Stock represented by Depositary Shares is subject to redemption, the Depositary Shares will be redeemed from the proceeds received by the Share Depositary resulting from the redemption, in whole or in part, of such series of the Preferred Stock held by the Share Depositary. The Share Depositary shall mail notice of redemption not less than 30 and not more than 60 days prior to the date fixed for redemption to the record holders of the Depositary Receipts evidencing the Depositary Shares to be so redeemed at their respective addresses appearing in the Share Depositary's books. The redemption price per Depositary Share will be equal to the applicable fraction of the redemption price per share payable with respect to such series of the Preferred Stock plus all money and other property, if any, payable with respect to such - 28 - Depositary Share, including all amounts payable by the Company in respect of any accumulated but unpaid dividends. Whenever the Company redeems shares of Preferred Stock held by the Share Depositary, the Share Depositary will redeem as of the same redemption date the number of Depositary Shares representing shares of Preferred Stock so redeemed. If less than all the Depositary Shares are to be redeemed, the Depositary Shares to be redeemed will be selected by lot or pro rata (subject to rounding to avoid fractions of Depositary Shares) as may be determined by the Share Depositary. After the date fixed for redemption, the Depositary Shares so called for redemption will no longer be deemed to be outstanding and all rights of the holders of Depositary Receipts evidencing such Depositary Shares will cease, except the right to receive the moneys payable upon such redemption and any money or other property to which such holders were entitled upon such redemption upon surrender to the Share Depositary of the Depositary Receipts evidencing such Depositary Shares. Voting of the Preferred Stock Upon receipt of notice of any meeting or action to be taken by written consent at or as to which the holders of the Preferred Stock are entitled to vote or consent, the Share Depositary will mail the information contained in such notice of meeting or action to the record holders of the Depositary Receipts evidencing the Depositary Shares relating to such Preferred Stock. Each record holder of such Depositary Receipts on the record date (which will be the same date as the record date for the Preferred Stock) will be entitled to instruct the Share Depositary as to the exercise of the voting rights or the giving or refusal of consent, as the case may be, pertaining to the number of shares of the Preferred Stock represented by the Depositary Shares evidenced by such holder's Depositary Receipts. The Share Depositary will endeavor, insofar as practicable, to vote, or give or withhold consent with respect to, the maximum number of whole shares of the Preferred Stock represented by all Depositary Shares as to which any particular voting or consent instructions are received, and the Company will agree to take all action which may be deemed necessary by the Share Depositary in order to enable the Share Depositary to do so. The Share Depositary will abstain from voting, or giving consents with respect to, shares of the Preferred Stock to the extent it does not receive specific instructions from the holders of Depositary Receipts evidencing Depositary Shares representing such Preferred Stock. Amendment and Termination of the Deposit Agreement The form of Depositary Receipt evidencing the Depositary Shares relating to any series of Preferred Stock and any provision of the related Deposit Agreement may at any time and from time to time be amended by agreement between the Company and the Share Depositary in any respect which they may deem necessary or desirable. However, any amendment which imposes or increases any fees, taxes or charges upon holders of Depositary Shares or Depositary Receipts relating to any series of Preferred Stock or which materially and adversely alters the existing rights of such holders will not be effective unless such amendment has been approved by the record holders of Depositary Receipts evidencing at least a majority of such Depositary Shares then outstanding. - 29 - Notwithstanding the foregoing, no such amendment may impair the right of any holder of Depositary Shares or Depositary Receipts to receive any moneys or other property to which such holder may be entitled under the terms of such Depositary Receipts or the Deposit Agreement at the times and in the manner and amount provided for therein. A Deposit Agreement may be terminated by the Company or the Share Depositary only after (i) all outstanding Depositary Shares relating thereto have been redeemed and any accumulated and unpaid dividends on the Preferred Stock represented by the Depositary Shares, together with all other moneys and property, if any, to which holders of the related Depositary Receipts are entitled under the terms of such Depositary Receipts or the related Deposit Agreement, have been paid or distributed as provided in the Deposit Agreement or provision therefor has been duly made, (ii) there has been a final distribution in respect of the Preferred Stock of the relevant series in connection with any liquidation, dissolution or winding up of the Company and such distribution has been distributed to the holders of the related Depositary Receipts, or distributed to the holders of the related Depositary Receipts, or (iii) in the event the Depositary Shares relate to a series of Preferred Stock which is convertible into shares of Common Stock or another series of Preferred Stock, all outstanding Depositary Shares have been converted into shares of Common Stock or another series of Preferred Stock. Miscellaneous The Share Depositary will forward to record holders of Depositary Receipts, at their respective addresses appearing in the Share Depositary's books, all reports and communications from the Company which are delivered to the Share Depositary and which the Company is required to furnish to the holders of the Preferred Stock or Depositary Receipts. The Company will pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements. The Company will pay the charges of the Share Depositary in connection with the initial deposit of the Preferred Stock and the initial issuance of the Depositary Receipts evidencing the Depositary Shares, any redemption of the Preferred Stock and any withdrawals of Preferred Stock by the holders of Depositary Shares. Holders of Depositary Shares will pay other transfer and other taxes and governmental charges and such other charges as are expressly provided in the Deposit Agreement to be for their accounts. The Deposit Agreement will contain provisions relating to adjustments in the fraction of a share of Preferred Stock represented by a Depositary Share in the event of a change in par or stated value, split-up, combination or other reclassification of the Preferred Stock or upon any recapitalization, merger or sale of substantially all of the assets of the Company. Neither the Share Depositary nor any of its agents nor any registrar nor the Company will be (i) liable if it is prevented or delayed by law or any circumstance beyond its control in performing its obligations under the Deposit Agreement, (ii) subject to any liability under the Deposit Agreement to holders of Depositary Receipts other than for the relevant party's gross negligence or willful misconduct, or (iii) obligated to prosecute or defend any legal proceeding in respect of any Depositary Receipts, Depositary Shares or the Preferred Stock unless satisfactory indemnity is furnished. They may rely upon - 30 - written advice of counsel or accountants, or information provided by holders of Depositary Receipts or other persons in good faith believed to be competent and on documents reasonably believed to be genuine. Resignation or Removal of Share Depositary The Share Depositary may resign at any time by delivering to the Company notice of its election to do so, and the Company may at any time remove the Share Depositary, any such resignation or removal to take effect upon the appointment of a successor Share Depositary and its acceptance of such appointment. Such successor Share Depositary must be appointed within 60 days after delivery of the notice of resignation or removal. OTHER MATTERS APPLICABLE TO THE OFFERED SECURITIES On February 9, 1994, the Board of Directors of the Company adopted a Rights Plan (the "Shareowner Rights Plan") which provided for a dividend of one Preferred Share Purchase Right (collectively, the "Rights") to be declared for each share of Class A Common Stock outstanding at the close of business on February 18, 1994 and authorized the issuance of one Right for each share of Class A Common Stock issued thereafter and prior to certain change in control events. The Rights are generally not exercisable until 10 days after a person or group acquires beneficial ownership (as defined) 15% of the Class A Common Stock or announces a tender offer which could result in a person or group beneficially owning 15% or more of the Class A Common Stock (an "Acquisition"). Each Right, should it become exercisable, will entitle the owner to buy 1/100th of a share of the Company's Series A Junior Preferred Stock at an exercise price of $80.00, subject to adjustment. In the event of an Acquisition without the approval of the Board, each Right will entitle the owner, other than an Acquirer (as defined), to buy at the Rights' then current exercise price, a number of shares of Class A Common Stock having a market value equal to twice the exercise price. In addition, if at the time when there was a 15% shareowner, the Company were to be acquired by merger, shareowners with unexercised Rights could purchase common stock of the acquirer having a value equal to twice the exercise price of the Rights. The Board may redeem the Rights for $0.01 per Right at any time prior to an Acquisition. Unless earlier redeemed, the Rights will expire on February 18, 2004. In addition to the Shareowner Rights Plan, the staggered election of the Company's Board of Directors, the authority to issue Preferred Stock without further shareowner approval, the effect of certain by-laws, the possible impact of the antitrust laws and certain provisions of New Jersey statutes may deter a hostile takeover of the Company. PLAN OF DISTRIBUTION - 31 - The Company may sell the Offered Securities to or through underwriters or dealers; directly to other purchasers; through agents; or through a combination of any such methods of sale. Any such underwriter, dealer or agent involved in the offer and sale of the Offered Securities will be named in the applicable Prospectus Supplement or Prospectus Supplements, including any such Supplement distributed for the purpose of providing pricing and other related information (a "Pricing Supplement"). The distribution of Offered Securities may be effected from time to time in one or more transactions at a fixed price or prices, which may be changed, or at market prices prevailing at the time of sale, at prices related to such prevailing market prices or at negotiated prices. The Company also may offer and sell the Offered Securities in exchange for one or more of its then outstanding securities. In connection with the sale of Offered Securities, underwriters may receive compensation from the Company or from purchasers of Offered Securities in the form of discounts, concessions or commissions. Underwriters may sell Offered Securities to or through dealers, and such dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for whom they may act as agent. Any underwriting compensation paid by the Company to underwriters, dealers or agents in connection with the offering of Offered Securities, and any discounts, concessions or commissions allowed by underwriters to participating dealers, will be set forth in the applicable Prospectus Supplement or Pricing Supplement. Underwriters, dealers and agents participating in the distribution of the Offered Securities may be deemed to be underwriters, and any discounts or commissions received by them from the Company and any profit realized by them on resale of the Offered Securities may be deemed to be underwriting discounts and commissions, under the Securities Act. Underwriters, dealers and agents that participate in the distribution of Offered Securities may be entitled, under agreements entered into with the Company, to indemnification against and contribution toward the payment of certain liabilities, including liabilities under the Securities Act, and to reimbursement for certain expenses. If so indicated in a Prospectus Supplement, the Company will authorize dealers acting as the Company's agents to solicit offers by certain institutions to purchase the Offered Securities to which such Prospectus Supplement relates from the Company at the public offering price set forth in such Prospectus Supplement pursuant to Delayed Delivery Contracts ("Contracts") providing for payment and delivery on the date or dates stated in such Prospectus Supplement. Each Contract will be for an amount not less than, and the aggregate principal amount of Offered Securities sold pursuant to Contracts shall be not less nor more than, the respective amounts stated in such Prospectus Supplement. Institutions with whom Contracts, when authorized, may be made include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions, and other institutions, but will in all cases be subject to the approval of the Company. Contracts will not be subject to any conditions except (i) the purchase by an institution of the Offered Securities covered by its Contracts shall not at the time of delivery be prohibited under the laws of any jurisdiction in the United States to which such institution is subject, and (ii) if the Offered Securities are being sold to - 32 - underwriters, the Company shall have sold to such underwriters the total principal amount of the Offered Securities less the principal amount thereof covered by Contracts. Certain of the underwriters, dealers or agents and their affiliates or associates may engage in transactions with and perform services for the Company or one or more of its subsidiaries in the ordinary course of business. The specific terms and manner of sale, including the place and time of delivery, of the Offered Securities in respect of which this Prospectus is being delivered will be set forth or summarized in the applicable Prospectus Supplement. LEGAL MATTERS The validity of the Offered Securities will be passed upon for the Company by Lowenstein, Sandler, Kohl, Fisher & Boylan, a Professional Corporation, Roseland, New Jersey. EXPERTS The consolidated financial statements of the Company as of September 30, 1995 and 1994, for the years ended September 30, 1995 and 1994, the one month period ended September 30, 1993, and the year ended August 31, 1993 incorporated in this Prospectus by reference to the Company's Annual Report on Form 10-K for the year ended September 30, 1995 have been audited by Deloitte & Touche LLP, independent auditors, as stated in their report which is incorporated herein by reference, and have been so incorporated in reliance upon the report of such firm given upon their authority as experts in auditing and accounting. - 33 - ============================================= ========================= No dealer, salesman or any other person is authorized in connection with any offering made hereby to give any information or to make any representation other than those contained or incorporated by reference in this Prospectus or any Prospectus Supplement and, if given or made, such $400,000,000 information or representation must not be relied upon as having been authorized. BERGEN BRUNSWIG This Prospectus and any Prospectus CORPORATION Supplement do not constitute an offer to sell or a solicitation of an offer to buy any security other than the securities offered thereby, nor do they constitute an offer to sell or a solicitation of an offer to buy any of the securities offered thereby to any person in any jurisdiction in which it is unlawful to make such an offer or solicitation. Neither the Securities delivery of this Prospectus or any Prospectus Supplement nor any sale made hereunder and thereunder shall, under any circumstances, create any implication that the information contained herein or therein is correct as of any date subsequent to the date hereof or thereof. ------------------------- ------------------------- TABLE OF CONTENTS PROSPECTUS ------------------------- ------------------------- Page ---- Available Information................ 3 Incorporation of Certain Documents by Reference..................... 4 The Company.......................... 5 Use of Proceeds...................... 5 Ratio of Earnings to Fixed Charges... 5 Description of Debt Securities....... 6 Senior Debt Securities............... 15 Subordinated Debt Securities......... 16 Description of Class A Common Stock.. 18 Description of Warrants.............. 19 Description of Preferred Stock....... 22 Description of Depositary Shares..... 27 Other Matters Applicable to the Offered Securities............... 31 Plan of Distribution................. 31 Legal Matters........................ 33 Experts.............................. 33 ============================================= ========================= PART II INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution Securities and Exchange Commission registration fee................... $ 137,932 Legal fees and expenses............................................... 75,000 Accounting fees and expenses.......................................... 75,000 Printing and engraving expenses....................................... 75,000 Trustees' fees and expenses........................................... 15,000 Rating Agency Fees.................................................... 200,000 Miscellaneous expenses................................................ 62,068 --------- Total................................................................. $ 640,000 =========
All expenses other than the Securities and Exchange Commission registration fee are estimated. Item 15. Indemnification of Directors and Officers Under the Company's Certificate of Incorporation, every person who is or was a director, officer, employee or agent of the Company and the legal representative of such a person is entitled to receive indemnification from the Company to the fullest extent permitted by law. Under New Jersey law, directors and officers may be indemnified in certain situations, subject to the Company's having taken certain actions and the directors and officers having met certain specified standards of conduct. In addition, in April, 1986, the Company entered into agreements, which were amended on July 3, 1986 (collectively, the "Indemnity Agreement"), to indemnify each of its directors against liabilities and defense costs to the extent that such directors would have been insured under the director and officer liability insurance policies which were in effect on December 31, 1984 (the "1984 Policy"). The 1984 Policy afforded broad coverage for liabilities arising under ERISA and the securities and antitrust laws. The obligation of the Company to indemnify a director under the Indemnity Agreement is limited to $30 million, the maximum coverage available under the 1984 Policy. However, the Indemnity Agreement does not limit a director's right to recover in excess of $30 million from the Company if the director is otherwise entitled to statutory indemnification. The Indemnity Agreement was ratified by the shareowners at the annual meeting held on December 17, 1986. The Company currently maintains a directors' and officers' insurance policy which provides liability coverage of $30 million. In addition, the Company's Certificate of Incorporation eliminates the personal liability of directors and officers to the Company and its shareowners for monetary damages for acts or omissions (including negligent and grossly negligent acts or omissions) in violation of a director's or officer's fiduciary duty of care. The duty of care refers to a fiduciary duty of directors and officers to manage the affairs of the Company with the same degree of care as would be applied by an "ordinarily prudent person under similar circumstances". The provisions of the Company's Restated Certificate of Incorporation which II - 1 eliminate the personal liability of directors and officers do not, in any way, eliminate or limit the liability of a director or officer for breaching his duty of loyalty (i.e., the duty to refrain from fraud, self-dealing and transactions involving improper conflicts of interest) to the Company or its shareowners, failing to act in good faith, knowingly violating a law or obtaining an improper personal benefit and do not have any effect on the availability of equitable remedies. See also the undertakings set forth with respect to Item 17 herein. Item 16. Exhibits 1.1 Form of Underwriting Agreement for Class A Common Stock, Warrants to purchase Class A Common Stock, Debt Securities, Warrants to purchase Debt Securities, Preferred Stock, Warrants to purchase Preferred Stock, Depositary Shares, Warrants to Purchase Depositary Shares and Units.* 4.1 Restated Certificate of Incorporation, as amended, is incorporated by reference herein to Exhibit 3 to the Registrant's Current Report on Form 8-K dated May 23, 1995. 4.2 Amended and Restated By-Laws are incorporated by reference to Exhibit 3(a) to the Registrant's Annual Report on Form 10-K for the year ended September 30, 1995. 4.3 Rights Agreement, dated as of February 8, 1994, between the Registrant and Chemical Trust Company of California, as Rights Agent, is incorporated by reference herein to Exhibit 1 to the Registrant's Registration Statement on Form 8-A dated February 14, 1994. 4.4 Form of Indenture for Senior Debt Securities (excluding LYONs). 4.5 Form of Indenture for Subordinated Debt Securities (excluding LYONs). 4.6 Form of Indenture for LYONs (including form of LYON). 4.7 Form of Senior Debt Security.* 4.8 Form of Subordinated Debt Security.* 4.9 Form of Debt Security Warrant Agreement.* 4.10 Form of Common Stock Warrant Agreement.* 4.11 Form of Preferred Stock Warrant Agreement.* 4.12 Form of specimen Warrant Certificate for Debt Securities.* 4.13 Form of specimen Warrant Certificate for Common Stock.* 4.14 Form of specimen Warrant Certificate for Preferred Stock.* 4.15 Form of specimen certificate representing shares of Class A Common Stock.* 4.16 Form of Certificate of Amendment with respect to Preferred Stock.* 4.17 Form of specimen certificate representing shares of Preferred Stock.* 4.18 Form of Depositary Agreement (including form of Depositary Receipt).* II - 2 5.1 Opinion of Lowenstein, Sandler, Kohl, Fisher & Boylan as to the validity of Offered Securities.* 10.1 Form of Amended and Restated Supplemental Executive Retirement Plan. 10.2 Form of Amended and Restated Capital Accumulation Plan. 12.1 Computation of Ratio of Earnings to Fixed Charges of the Registrant. 23.1 Consent of Deloitte & Touche LLP. 23.2 Consent of Lowenstein, Sandler, Kohl, Fisher & Boylan (to be included in its opinion filed as Exhibit 5.1).* 24.1 Power of Attorney (set forth on the Signature Page of this Registration Statement). 25.1 Statement of Eligibility of Trustee on Form T-1. _______________ [FN] * To be filed by amendment or to be filed as an exhibit to a report and incorporated herein by reference. Item 17. Undertakings The undersigned Registrant hereby undertakes: A. To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933 (the "Act"); (ii) to reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of a prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective Registration Statement; and (iii) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in the Registration Statement. II - 3 Provided, however, that clauses (i) and (ii) above shall not apply if the information required to be included in a post-effective amendment by these clauses is contained in periodic reports filed by the Registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") that are incorporated by reference in this Registration Statement. B. That, for the purpose of determining any liability under the Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. C. To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. D. That for purposes of determining any liability under the Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. E. That insofar as indemnification for liabilities arising under the Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions described in Item 15 above, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. F. That for purposes of determining any liability under the Act, the information omitted from a form of prospectus filed as part of this Registration Statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Act shall be deemed to be part of this Registration Statement as of the time it was declared effective. G. That for the purpose of determining any liability under the Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. II - 4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Orange, State of California, on the 29th day of January, 1996. BERGEN BRUNSWIG CORPORATION By: /s/ Robert E. Martini -------------------------- Robert E. Martini Chairman of the Board KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below hereby constitutes and appoints Robert E. Martini, Donald R. Roden, Neil F. Dimick and Milan A. Sawdei, and each of them singly, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments to this Registration Statement (including supplements thereto and post-effective amendments), and to file the same with all exhibits thereto and other documents in connection therewith with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully and to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated. Signature Title Date --------- ----- ---- /s/ Robert E. Martini Chairman of the Board, January 29, 1996 - ------------------------- Chief Executive Officer Robert E. Martini and Director /s/ Jose E. Blanco, Sr. Director January 29, 1996 - ------------------------- Jose E. Blanco, Sr. /s/ Rodney H. Brady Director January 29, 1996 - ------------------------- Rodney H. Brady /s/ John Calasibetta Senior Vice President and January 29, 1996 - ---------------------- Director John Calasibetta /s/ Neil F. Dimick Executive Vice President, January 29, 1996 - ---------------------- Chief Financial Officer, Neil F. Dimick Principal Accounting Officer and Director /s/ Charles C. Edwards,M.D. Director January 29, 1996 - -------------------------- Charles C. Edwards, M.D. /s/ Charles J. Lee Director January 29, 1996 - ---------------------- Charles J. Lee /s/ George R. Liddle Director January 29, 1996 - ----------------------- George R. Liddle /s/ James R. Mellor Director January 29, 1996 - ---------------------- James R. Mellor /s/George E. Reinhardt, Jr. Director January 29, 1996 - ------------------------ George E. Reinhardt, Jr. /s/ Donald R. Roden President, Chief Operating January 29, 1996 - -------------------------- Officer and Director Donald R. Roden /s/ Francis G. Rodgers Director January 29, 1996 - ------------------------ Francis G. Rodgers EXHIBIT INDEX 1.1 Form of Underwriting Agreement for Class A Common Stock, Warrants to purchase Class A Common Stock, Debt Securities, Warrants to purchase Debt Securities, Preferred Stock, Warrants to purchase Preferred Stock, Depositary Shares, Warrants to purchase Depositary Shares and Units.* 4.1 Restated Certificate of Incorporation, as amended, is incorporated by reference herein to Exhibit 3 to the Registrant's Current Report on Form 8-K dated May 23, 1995. 4.2 Amended and Restated By-Laws are incorporated by reference to Exhibit 3(a) to the Registrant's Annual Report on Form 10-K for the year ended September 30, 1995. 4.3 Rights Agreement, dated as of February 8, 1994, between the Registrant and Chemical Trust Company of California, as Rights Agent, is incorporated by reference herein to Exhibit 1 to the Registrant's Registration Statement on Form 8-A dated February 14, 1994. 4.4 Form of Indenture for Senior Debt Securities (excluding LYONs). 4.5 Form of Indenture for Subordinated Debt Securities (excluding LYONs). 4.6 Form of Indenture for LYONs (including form of LYON). 4.7 Form of Senior Debt Security.* 4.8 Form of Subordinated Debt Security.* 4.9 Form of Debt Security Warrant Agreement.* 4.10 Form of Common Stock Warrant Agreement.* 4.11 Form of Preferred Stock Warrant Agreement.* 4.12 Form of specimen Warrant Certificate for Debt Securities.* 4.13 Form of specimen Warrant Certificate for Common Stock.* 4.14 Form of specimen Warrant Certificate for Preferred Stock.* 4.15 Form of specimen certificate representing shares of Class A Common Stock.* 4.16 Form of Certificate of Amendment with respect to Preferred Stock.* 4.17 Form of specimen certificate representing shares of Preferred Stock.* 4.18 Form of Depositary Agreement (including form of Depositary Receipt).* 5.1 Opinion of Lowenstein, Sandler, Kohl, Fisher & Boylan as to the validity of Offered Securities.* 10.1 Form of Amended and Restated Supplemental Executive Retirement Plan. 10.2 Form of Amended and Restated Capital Accumulation Plan. 12.1 Computation of Ratio of Earnings to Fixed Charges of the Registrant. 23.1 Consent of Deloitte & Touche LLP. 23.2 Consent of Lowenstein, Sandler, Kohl, Fisher & Boylan (to be included in its opinion filed as Exhibit 5.1).* 24.1 Power of Attorney (set forth on the Signature Page of this Registration Statement). 25.1 Statement of Eligibility of Trustee on Form T-1. _______________ [FN] *To be filed by amendment or to be filed as an exhibit to a report and incorporated herein by reference. EX-4.4 2 SENIOR DEBT SECURITIES BETWEEN BERGEN BRUNSWIG CORPORATION AND CHEMICAL TRUST COMPANY OF CALIFORNIA EXHIBIT 4.4 BERGEN BRUNSWIG CORPORATION TO CHEMICAL TRUST COMPANY OF CALIFORNIA, as Trustee __________________________ Indenture Dated as of January 1, 1996 __________________________ Senior Debt Securities
CROSS REFERENCE TABLE(1) TIA Indenture Section Section ------- --------- 310 (a)(1) ............................................... 6.09 (a)(2) ............................................... 6.09 (a)(3) ............................................... N.A. (a)(4) ............................................... N.A. (a)(5) ............................................... 6.09 (b) ............................................... 6.08 (c) ............................................... N.A. 311 (a) ............................................... 6.13 (b) ............................................... 6.13 (c) ............................................... N.A. 312 (a) ............................................... 7.01, 7.02 (b) ............................................... 7.02 (c) ............................................... 7.02 313 (a) ............................................... 7.03 (b) ............................................... 7.03 (c) ............................................... 7.03 (d) ............................................... 7.03 314 (a) ............................................... 7.04, 10.06 (b) ............................................... N.A. (c)(1) ............................................... 1.02 (c)(2) ............................................... 1.02 (c)(3) ............................................... N.A. (d) ............................................... N.A. (e) ............................................... 1.02 315 (a) ............................................... 6.01 (a) (b) ............................................... 6.02, 7.03 (c) ............................................... 6.01 (b) (d) ............................................... 6.01 (c) (e) ............................................... 5.14 316 (a)(last sentence) .................................... 1.01 ("outstanding") (a)(1)(A) ............................................. 5.12 (a)(1)(B) ............................................. 5.13 (a)(2) ............................................... N.A. (b) ............................................... 5.08 (c) ............................................... 1.04 317 (a)(1) ............................................... 5.03 (a)(2) ............................................... 5.04 (b) ............................................... 10.03 318 (a) ............................................... 1.07 - ------------------------ 1 This Cross Reference Table shall not, for any purpose, be deemed to be part of the Indenture, N.A. means Not Applicable.
TABLE OF CONTENTS(1) PAGE ---- PARTIES................................................................ 1 RECITALS OF THE COMPANY................................................ 1 ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION SECTION 1.01.......................................................... 1 Definitions: Act............................................................... 2 Affiliate; control................................................ 2 Authenticating Agent.............................................. 2 Authorized Newspaper.............................................. 2 Bearer Security................................................... 2 Board of Directors; Board......................................... 3 Board Resolution.................................................. 3 Business Day...................................................... 3 Capital Stock..................................................... 3 CEDEL; CEDEL SA................................................... 3 Closing Price..................................................... 3 Commencement Date................................................. 3 Commission........................................................ 3 Common Stock...................................................... 4 Company........................................................... 4 Company Request; Company Order.................................... 4 Component Currency................................................ 4 Conversion Date................................................... 4 Conversion Event.................................................. 4 Corporate Trust Office............................................ 4 corporation....................................................... 4 coupon............................................................ 4 Covenant Defeasance............................................... 4 Curreny; currency................................................. 4 Defaulted Interest................................................ 4 Defeasance........................................................ 4 Defeasible Series................................................. 4 Depositary........................................................ 5 Designated Currency............................................... 5 Dollar; $......................................................... 5 Dollar Equivalent................................................. 5 ECU............................................................... 5 Election Date..................................................... 5 Euroclear......................................................... 5 European Communities.............................................. 5 European Monetary System.......................................... 5 Event of Default.................................................. 5 Exchange Act...................................................... 5 - i - PAGE ---- Exchange Date..................................................... 5 Exchange Rate Agent............................................... 5 Exchange Rate Officer's Certificate............................... 5 Expiration Time................................................... 5 Foreign Currency.................................................. 6 Global Security................................................... 6 Holder............................................................ 6 Indenture......................................................... 6 Indexed Security.................................................. 6 interest.......................................................... 6 Interest Payment Date............................................. 6 Long Term Debt.................................................... 6 Market Exchange Rate.............................................. 6 Maturity.......................................................... 7 non-electing share................................................ 7 Notice of Default................................................. 7 Officers' Certificate............................................. 7 Opinion of Counsel................................................ 7 Original Issue Discount Security.................................. 7 Outstanding....................................................... 7 Paying Agent...................................................... 9 Person............................................................ 9 Place of Payment.................................................. 9 Predecessor Security.............................................. 9 Purchased Shares.................................................. 9 Redemption Date................................................... 9 Redemption Price.................................................. 9 Reference Date.................................................... 9 Registered Security............................................... 9 Regular Record Date............................................... 9 Remarketing Entity................................................ 9 Repayment Date.................................................... 9 Repayment Price................................................... 9 Responsible Officer............................................... 10 Securities........................................................ 10 Security Register; Security Registrar............................. 10 Special Record Date............................................... 10 Specified Amount.................................................. 10 Stated Maturity................................................... 10 Subsidiary........................................................ 10 Trading Day....................................................... 10 Trigger Event..................................................... 10 Trustee........................................................... 10 Trust Indenture Act; TIA.......................................... 11 United States..................................................... 11 United States Alien............................................... 11 U.S. Government Obligations....................................... 11 Valuation Date.................................................... 11 Vice President.................................................... 11 SECTION 1.02. Compliance Certificates and Opinions................... 11 SECTION 1.03. Form of Documents Delivered to Trustee................. 12 SECTION 1.04. Acts of Holders; Record Dates.......................... 12 SECTION 1.05. Notices, Etc., to Trustee and Company.................. 14 - ii - PAGE ---- SECTION 1.06. Notice to Holders; Waiver.............................. 15 SECTION 1.07. Conflict with Trust Indenture Act...................... 16 SECTION 1.08. Effect of Headings and Table of Contents............... 16 SECTION 1.09. Successors and Assigns................................. 16 SECTION 1.10. Separability Clause.................................... 16 SECTION 1.11. Benefits of Indenture.................................. 16 SECTION 1.12. Governing Law.......................................... 17 SECTION 1.13. Legal Holidays......................................... 17 SECTION 1.14. Counterparts........................................... 17 ARTICLE TWO SECURITY FORMS SECTION 2.01. Forms Generally........................................ 17 SECTION 2.02. Form of Trustee's Certificate of Authentication........ 18 SECTION 2.03. Securities Issuable in Global Form..................... 18 ARTICLE THREE THE SECURITIES SECTION 3.01. Amount Unlimited; Issuable in Series................... 19 SECTION 3.02. Denominations.......................................... 22 SECTION 3.03. Execution, Authentication, Delivery and Dating......... 22 SECTION 3.04. Temporary Securities................................... 25 SECTION 3.05. Registration, Registration of Transfer and Exchange.... 27 SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities....... 31 SECTION 3.07. Payment of Interest; Interest Rights Preserved; Optional Interest Reset................................ 32 SECTION 3.08. Optional Extension of Maturity......................... 35 SECTION 3.09. Persons Deemed Owners.................................. 35 SECTION 3.10. Cancellation........................................... 36 SECTION 3.11. Computation of Interest................................ 36 SECTION 3.12. Currency and Manner of Payments in Respect of Securities............................................. 37 SECTION 3.13. Appointment and Resignation of Successor Exchange Rate Agent............................................. 40 SECTION 3.14. CUSIP Numbers.......................................... 41 SECTION 3.15. Certification by a Person Entitled to Delivery of Bearer Security........................................ 41 SECTION 3.16. Judgments.............................................. 41 SECTION 3.17 Medium Term Securities................................. 42 ARTICLE FOUR SATISFACTION AND DISCHARGE SECTION 4.01. Satisfaction and Discharge of Indenture................ 42 SECTION 4.02. Application of Trust Money............................. 43 - iii - PAGE ---- ARTICLE FIVE REMEDIES SECTION 5.01. Events of Default...................................... 44 SECTION 5.02. Acceleration of Maturity; Rescission and Annulment..... 46 SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee............................................. 47 SECTION 5.04. Trustee May File Proofs of Claim....................... 47 SECTION 5.05. Trustee May Enforce Claims Without Possession of Securities or Coupons.................................. 48 SECTION 5.06. Application of Money Collected......................... 48 SECTION 5.07. Limitation on Suits.................................... 49 SECTION 5.08. Unconditional Right of Holders to Receive Principal, Premium and Interest................................... 50 SECTION 5.09. Restoration of Rights and Remedies..................... 50 SECTION 5.10. Rights and Remedies Cumulative......................... 50 SECTION 5.11. Delay or Omission Not Waiver........................... 50 SECTION 5.12. Control by Holders..................................... 51 SECTION 5.13. Waiver of Past Defaults................................ 51 SECTION 5.14. Undertaking for Costs.................................. 52 SECTION 5.15. Waiver of Usury, Stay or Extension Laws................ 52 ARTICLE SIX THE TRUSTEE SECTION 6.01. Certain Duties and Responsibilities.................... 52 SECTION 6.02. Notice of Defaults..................................... 53 SECTION 6.03. Certain Rights of Trustee.............................. 54 SECTION 6.04. Not Responsible for Recitals or Issuance of Securities. 55 SECTION 6.05. May Hold Securities.................................... 55 SECTION 6.06. Money Held in Trust.................................... 55 SECTION 6.07. Compensation and Reimbursement......................... 56 SECTION 6.08. Disqualification; Conflicting Interests................ 56 SECTION 6.09. Corporate Trustee Required; Eligibility................ 57 SECTION 6.10. Resignation and Removal; Appointment of Successor...... 58 SECTION 6.11. Acceptance of Appointment by Successor................. 59 SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business............................................ 60 SECTION 6.13. Preferential Collection of Claims Against Company...... 61 SECTION 6.14. Appointment of Authenticating Agent.................... 61 - iv - PAGE ---- ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders............................................. 62 SECTION 7.02. Preservation of Information; Communications to Holders. 63 SECTION 7.03. Reports by Trustee..................................... 63 SECTION 7.04. Reports by Company..................................... 63 ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms... 64 SECTION 8.02. Successor Person Substituted........................... 64 ARTICLE NINE SUPPLEMENTAL INDENTURES SECTION 9.01. Supplemental Indentures Without Consent of Holders...... 65 SECTION 9.02. Supplemental Indentures with Consent of Holders......... 66 SECTION 9.03. Execution of Supplemental Indentures.................... 67 SECTION 9.04. Effect of Supplemental Indentures....................... 68 SECTION 9.05. Conformity with Trust Indenture Act..................... 68 SECTION 9.06. Reference in Securities to Supplemental Indentures...... 68 SECTION 9.07 Notice of Supplemental Indenture........................ 68 ARTICLE TEN COVENANTS SECTION 10.01. Payment of Principal, Premium and Interest.............. 68 SECTION 10.02. Maintenance of Office or Agency......................... 69 SECTION 10.03. Money for Securities Payments to Be Held in Trust....... 70 SECTION 10.04. Purchase of Securities by Company or Subsidiary......... 71 SECTION 10.05. Payment of Additional Amounts........................... 71 SECTION 10.06. Statement by Officers as to Default..................... 72 SECTION 10.07. Existence............................................... 72 - v - PAGE ---- ARTICLE ELEVEN REDEMPTION OF SECURITIES SECTION 11.01. Applicability of Article................................ 73 SECTION 11.02. Election to Redeem; Notice to Trustee................... 73 SECTION 11.03. Selection by Trustee of Securities to Be Redeemed....... 73 SECTION 11.04. Notice of Redemption.................................... 74 SECTION 11.05. Deposit of Redemption Price............................. 75 SECTION 11.06. Securities Payable on Redemption Date................... 75 SECTION 11.07. Securities Redeemed in Part............................. 76 ARTICLE TWELVE SINKING FUNDS SECTION 12.01. Applicability of Article................................ 76 SECTION 12.02. Provisions with Respect to any Sinking Funds............ 76 ARTICLE THIRTEEN REPAYMENT AT THE OPTION OF HOLDERS SECTION 13.01. Applicability of Article................................ 78 SECTION 13.02. Repayment of Securities................................. 78 SECTION 13.03. Exercise of Option; Notice.............................. 78 SECTION 13.04. Election of Repayment by Remarketing Entities........... 79 SECTION 13.05. Securities Payable on the Repayment Date................ 79 ARTICLE FOURTEEN MEETINGS OF HOLDERS OF SECURITIES SECTION 14.01. Purposes for Which Meetings May Be Called............... 80 SECTION 14.02. Call, Notice and Place of Meetings...................... 80 SECTION 14.03. Persons Entitled to Vote at Meetings.................... 80 SECTION 14.04. Quorum; Action.......................................... 81 SECTION 14.05. Determination of Voting Rights; Conduct and Adjournment of Meetings............................................. 81 SECTION 14.06. Counting Votes and Recording Action of Meetings......... 82 ARTICLE FIFTEEN DEFEASANCE AND COVENANT DEFEASANCE SECTION 15.01. Company's Option to Effect Defeasance or Covenant Defeasance..................................... 83 SECTION 15.02. Defeasance and Discharge................................ 83 - vi - PAGE ---- SECTION 15.03. Covenant Defeasance..................................... 83 SECTION 15.04. Conditions to Defeasance or Covenant Defeasance......... 84 SECTION 15.05. Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions........... 85 SECTION 15.06. Reinstatement........................................... 86 ARTICLE SIXTEEN CONVERSION OF SECURITIES SECTION 16.01. Conversion Privilege and Conversion Price............... 87 SECTION 16.02. Exercise of Conversion Privilege........................ 87 SECTION 16.03. Fractions of Shares..................................... 88 SECTION 16.04. Adjustment of Conversion Price.......................... 89 SECTION 16.05. Notice of Adjustments of Conversion Price............... 93 SECTION 16.06. Notice of Certain Corporate Action...................... 94 SECTION 16.07. Company to Reserve Common Stock......................... 95 SECTION 16.08. Taxes on Conversions.................................... 95 SECTION 16.09. Covenant as to Common Stock............................. 95 SECTION 16.10. Cancellation of Converted Securities, etc............... 95 SECTION 16.11. Provision in the Case of Consolidation, Merger or Sales of Assets...................................... 95 SECTION 16.12. Trustee's Adjustment Disclaimer......................... 96 TESTIMONIUM............................................................ 96 SIGNATURES AND SEALS................................................... 96 ACKNOWLEDGMENTS........................................................ 98 FORMS OF CERTIFICATION................................................. A-1-1 - vii - THIS INDENTURE, dated as of January 1, 1996, is between BERGEN BRUNSWIG CORPORATION, a New Jersey corporation having offices at 4000 Metropolitan Drive, Orange, California 92668-3510(herein called the "Company"), and CHEMICAL TRUST COMPANY OF CALIFORNIA, as Trustee (herein called the "Trustee"). RECITALS OF THE COMPANY The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its debentures, notes or other evidences of indebtedness (herein called the "Securities"), to be issued in one or more series as in this Indenture provided. 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 agreed, for the equal and proportionate benefit of all Holders of the Securities or of one or more series thereof, as follows: ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION SECTION 1.01. Definitions. ----------- For all purposes of this Indenture and of any indenture supplemental hereto, except as otherwise expressly provided or unless the context otherwise requires: (1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular; (2) all other terms used herein which are defined in the TIA, or by Commission rule or regulation under the TIA, either directly or by reference therein, as in force at the date as of which this instrument was executed, except as provided in Section 9.05, have the meanings assigned to them therein; the terms "cash transaction" and "self-liquidating" paper, as used in TIA Section 311, shall have the meanings assigned to them in the rules of the Commission adopted under the TIA; and the following TIA terms used in this Indenture have the following meanings: "indenture securities" means the Securities; "indenture security holder" means the Holder; "indenture to be qualified" means this Indenture; - 1 - "indenture trustee" or "institutional trustee" means the Trustee; and "obligor" on the indenture securities means the Company; (3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles; and, except as otherwise herein expressly provided, the term "generally accepted accounting principles" with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted in the United States at the date of such computation; (4) the words "Article" and "Section" refer to an Article and Section, respectively, of this Indenture; and (5) the words "herein", "hereof" and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. Certain other terms are defined elsewhere herein. "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, partnerships or other ownership interests, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Authenticating Agent" means any Person authorized by the Trustee pursuant to Section 6.14 to act on behalf of the Trustee to authenticate Securities of one or more series. "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. "Bearer Security" means any Security established pursuant to Section 2.01 which is payable to bearer including, without limitation, unless the context otherwise indicates, a Security in global bearer form. - 2 - "Board of Directors" or "Board" means either the board of directors of the Company or any duly authorized committee of such board or any committee of officers of the Company acting pursuant to authority granted by such board or any committee of such 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. Where any provision of this Indenture refers to action to be taken pursuant to a Board Resolution (including the establishment of any series of the Securities and the forms and terms thereof), such action may be taken by any committee of the Board of Directors or the Company or any officer or employee of the Company authorized to take such action by a Board Resolution. "Business Day", when used with respect to any Place of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of Payment are authorized or obligated by law or executive order to close. "Capital Stock" for any corporation means any and all shares, interest, rights to purchase, warrants, options, participants or other equivalents of or interests (however designated) in stock issued by that corporation. "CEDEL" or "CEDEL S.A." means Centrale de Livraison de Valeurs Mobilieres S.A., or its successor. "Closing Price" for any day means the last reported sale price of the Common Stock regular way on such day or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices regular way on such day, in either case on the New York Exchange or, if the Common Stock is not listed or admitted to trading on such exchange, on the principal national securities exchange on which the Common Stock is listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, on the NASDAQ National Market System or, if the Common Stock is not listed or admitted to trading on any national securities exchange or quoted on such National Market System, the average of the closing bid and asked prices in the over-the- counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Company for that purpose. If the Common Stock is not listed or admitted to trading on any national securities exchange, quoted on such National Market System or listed in any list of bid and asked prices in the over-the-counter market, "Closing Price" shall mean the fair market value of the Common Stock as determined in good faith by the Board of Directors. "Commencement Date" shall have the meaning specified in Section 16.04(8). "Commission" means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time. "Common Stock" shall mean the Class A Common Stock, par value $1.50 per share, of the Company as it exists on the date of this Indenture or any other shares of Capital Stock of the Company into which such Class A Common Stock shall be reclassified or changed. - 3 - "Company" means the Person named as the "Company" in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Company" shall mean such successor Person. The foregoing sentence shall likewise apply to any subsequent such successor Person. "Company Request" or "Company Order" means a written request or order signed in the name of the Company by its Chairman of the Board, its President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee. "Component Currency" has the meaning specified in Section 3.12(h). "Conversion Date" has the meaning specified in Section 3.12(d). "Conversion Event" means the cessation of use of (i) a Foreign Currency both by the government of the country which issued such currency and for the settlement of transactions by a central bank or other public institutions of or within the international banking community, (ii) the ECU both within the European Monetary System and for the settlement of transactions by public institutions of or within the European Communities or (iii) any currency unit (or composite currency) other than the ECU for the purposes for which it was established. "Corporate Trust Office" means the office of the Trustee in San Francisco, California at which at any particular time its corporate trust business shall be administered, which office at the date hereof is located at 50 California Street, San Francisco, California 94111. "corporation" means a corporation, association, company, joint stock company or business trust. "coupon" means any interest coupon appertaining to a Bearer Security. "Covenant Defeasance" has the meaning specified in Section 15.03. "Currency" or "currency" means any currency or currencies, composite currency or currency unit or currency units, including, without limitation, the ECU, issued by the government of one or more countries or by any reorganized confederation or association of such governments. "Defaulted Interest" has the meaning specified in Section 3.07. "Defeasance" has the meaning specified in Section 15.02 and "Covenant Defeasance" has the meaning specified in Section 15.03. "Defeasible Series" has the meaning specified in Section 15.01. "Depositary" means, with respect to the Securities of any series issuable or issued in whole or in part in the form of one or more Global Securities, the Person designated as Depositary by the Company pursuant to Section 3.01 until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Depositary" shall mean or include each Person who is then a Depositary hereunder, and if at any time there is more than one such Person, "Depositary" as used with respect to the Securities of any such series shall mean the Depositary with respect to the Securities of that series. - 4 - "Designated Currency" has the meaning specified in Section 3.16. "Dollar" or "$" means a dollar or other equivalent within the coin or currency of the United States as at the time of payment is legal tender for the payment of public and private debts. "Dollar Equivalent" has the meanings specified in paragraphs (f) and (g) of Section 3.12. "Election Date" has the meaning specified in Section 3.12(h). "ECU" means the European Currency Unit as defined and revised from time to time by the Council of the European Communities. "Euroclear" means Morgan Guarantee 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. "European Monetary System" means the European Monetary System established by the Resolution of December 5, 1978 of the Council of the European Communities. "Event of Default" has the meaning specified in Section 5.01. "Exchange Act" means the Securities Exchange Act of 1934, as amended from time to time, and any successor thereto, and the rules and regulations promulgated thereunder. "Exchange Date" shall have the meaning specified in Section 3.04(b). "Exchange Rate Agent" shall have the meaning specified as contemplated in Section 3.01. "Exchange Rate Officer's Certificate", means a certificate setting forth the applicable Market Exchange Rate or applicable bid quotation and the amounts payable in Dollars and Foreign Currencies in respect of the principal of (and premium, if any) and interest, if any, on Securities denominated in ECU and other composite Currency or Foreign Currency, and signed by the 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. "Expiration Time" shall have the meaning specified in Section 16.04(6). "Foreign Currency" means any Currency, including, without limitation, the ECU issued by the government of one or more countries other than the United States or by any recognized confederation or association of such governments. "Global Security" means a Security evidencing all or part of a series of Securities, authenticated and delivered to the Depositary for such series or its nominee, and registered in the name of such Depositary or nominee, in accordance with Section 3.03. "Holder" means, with respect to a Registered Security, a Person in whose name a Registered Security is registered in the Security Register and, with respect to a Bearer Security, the bearer thereof. - 5 - "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, including, for all purposes of this instrument, and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively. The term "Indenture" shall also include the terms of particular series of Securities established as contemplated by Section 3.01. "Indexed Security" means a Security as to which all or certain interest payments and/or the principal amount payable at Maturity are determined by reference to prices, changes in prices, or differences between prices, or securities or Currencies as specified pursuant to Section 3.01 hereof. "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 Security, means the Stated Maturity of an installment of interest on such Security, and, when used with respect to a Security which provides for the payment of additional amounts pursuant to Section 10.05, includes such additional amounts. "Long Term Debt" means, indebtedness of the Company or its Subsidiaries classified as long-term debt under generally accepted accounting principles. "Market Exchange Rate" means, unless otherwise specified with respect to any Securities pursuant to Section 3.01, (i) for any conversion involving a Currency unit on the one hand and Dollars or any Foreign Currency on the other, the exchange rate between the relevant Currency unit and Dollars or such Foreign Currency calculated by the method specified pursuant to Section 3.01 for the Securities of the relevant series, (ii) for any conversion of Dollars into any Foreign Currency, the noon buying rate for such Foreign Currency for cable transfers quoted in New York City as certified for customs purposes by the Federal Reserve Bank of New York and (iii) for any conversion of one Foreign Currency into Dollars or another Foreign Currency, the spot rate at noon local time in the relevant market at which, in accordance with normal banking procedures, the Dollars or Foreign Currency into which conversion is being made could be purchased with the Foreign Currency from which conversion is being made from major banks located in either New York City, London or any other principal market for Dollars or such purchased Foreign Currency, in each case as determined by the Exchange Rate Agent. Unless otherwise specified with respect to any Securities pursuant to Section 3.01, in the event of the unavailability of any of the exchange rates provided for in the foregoing clauses (i), (ii) and (iii), the Exchange Rate Agent shall use, in its sole discretion and without liability on its part, such quotation of the Federal Reserve Bank of New York as of the most recent available date, or quotations from one or more major banks in New York City, London or other principal market for such currency or currency unit in question, or such other quotations as the Exchange Rate Agent shall deem appropriate. Unless otherwise specified by the Exchange Rate Agent, if there is more than one market for dealing in any currency or currency unit by reason of foreign exchange regulations or otherwise, the market to be used in respect of such currency or currency unit shall be that - 6 - upon which a nonresident issuer of securities designated in such currency or currency unit would purchase such currency or currency unit in order to make payments in respect of such securities. "Maturity", when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether on a Repayment Date, at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise. "non-electing share" shall have the meaning specified in Section 16.11. "Notice of Default" means a written notice of the kind specified in Section 5.01(4) or 5.01(5). "Officers' Certificate" means a certificate signed by the Chairman of the Board, the President or any Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or any Assistant Secretary, of the Company, and delivered to the Trustee, which shall comply with Section 1.02 to the extent applicable. "Opinion of Counsel" means a written opinion of counsel, who may be an employee of or counsel to the Company, and who shall be acceptable to the Trustee, which shall comply with Section 1.02 to the extent applicable. "Original Issue Discount Security" means any (i) 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 5.02 and (ii) other Security deemed an original issue discount security for United States federal income tax purposes. "Outstanding", when used with respect to Securities of a particular series, means, as of the date of determination, all such Securities theretofore authenticated and delivered under this Indenture, except: (1) such Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation; (2) 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 in accordance with Section 4.01; 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; (3) such Securities as to which Defeasance has been effected pursuant to Section 15.02 or 15.03; and (4) such Securities which have been paid pursuant to Section 3.06 or in exchange for or in lieu of which other Securities have been authenticated - 7 - and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a Person in whose hands such Securities are legal, valid and binding obligations of the Company; provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder or are present at a meeting of Holders for quorum purposes, and for the purpose of making the calculations required by TIA Section 313, (A) the principal amount of an Original Issue Discount Security that may be counted in making such determination or calculation and that shall be deemed to be Outstanding for such purpose shall be equal to the amount of principal thereof that would be (or shall have been declared to be) due and payable, at the time of such determination, upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02, (B) the principal amount of any Security denominated in a Foreign Currency that may be counted in making such determination or calculation and that shall be deemed to be Outstanding for such purpose shall be equal to the Dollar equivalent, determined as of the date such Security is originally issued by the Company as set forth in an Exchange Rate Officer's Certificate delivered to the Trustee, of the principal amount (or in the case of an Original Issue Discount Security or Indexed Security, the Dollar equivalent as of such date of original issuance of the amount determined as provided in clause (A) above or (C) below, respectively) of such Security, (C) the principal amount of any Indexed Security that may be counted in making such determination or calculation and that shall be deemed to be Outstanding for such purpose shall be equal to the principal face amount of such Indexed Security at original issuance, unless otherwise provided with respect to such Security pursuant to Section 3.01, and (D) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which the Trustee knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor. "Paying Agent" means any Person authorized by the Company to pay the principal of (or any premium) or interest on any Securities on behalf of the Company. "Person" means any individual, corporation, partnership, limited liability company, joint venture, 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 the principal of and any premium and interest on the Securities of that series are payable as specified as contemplated by Sections 3.01 and 10.02, or if no such place shall be specified, at the offices of the Paying Agent. "Predecessor Security" of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such - 8 - particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.06 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security. "Purchased Share" shall have the meaning specified in Section 16.04(6). "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 at which it is to be redeemed pursuant to this Indenture. "Reference Date" shall have the meaning specified in Section 16.04(4). "Registered Security", means any Security in the form of Registered Securities established pursuant to Section 2.01 which is registered in the Security Register. "Regular Record Date", for the interest payable on any Interest Payment Date on the Registered Securities of any series means the date specified for that purpose as contemplated by Section 3.01. "Remarketing Entity", when used with respect to 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 an option for repayment by the Holder, means the date fixed for such repayment. "Repayment Price", when used with respect to any Security to be repaid upon exercise of an option for repayment by the Holder, means the price at which it is to be repaid pursuant to this Indenture. "Responsible Officer" means the President or any Vice President, Assistant Vice President or Trust Officer of the Trustee to whom any matter has been referred because of such officer's knowledge and familiarity with the particular subject. "Securities" has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture. "Security Register" and "Security Registrar" have the respective meanings specified in Section 3.05. "Special Record Date" for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.07. "Specified Amount" has the meaning specified in Section 3.12(h). "Stated Maturity", when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such - 9 - Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable, as amended in accordance with the terms hereof. "Subsidiary" shall mean (i) a corporation a majority of the outstanding voting stock of which is owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries, or (ii) a partnership in which the Company or a Subsidiary of the Company is at the date of determination, a general partner of such partnership, or (iii) any other Person (other than a corporation or a partnership) in which the Company, a Subsidiary of the Company or the Company and one or more Subsidiaries of the Company, directly or indirectly, at the date of determination, has (x) at least a majority ownership interest or (y) the power to elect or direct the election of a majority of the directors or other governing body of such Person. For the purposes of this definition, 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. "Trading Day" means, with respect to the Common Stock, each Monday, Tuesday, Wednesday, Thursday and Friday, other than any day on which securities are not traded on the exchange or market on which the Common Stock is traded. "Trigger Event" shall have the meaning specified in Section 16.04(7). "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 each Trustee with respect to Securities of that series. "Trust Indenture Act", or "TIA", means the Trust Indenture Act of 1939 and the rules and regulations promulgated thereunder as in force at the date as of which this instrument was executed, except as provided in Section 9.05; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act" or "TIA" means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended and the rules and regulations promulgated thereunder. "United States" means the United States of America (including the District of Columbia) and its possessions and territories and other areas subject to its jurisdiction (including the Commonwealth of Puerto Rico). "United States Alien" 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. - 10 - "U.S. Government Obligations" means securities which are (i) direct obligations of the United States for the payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian with respect to any such U.S. Government Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of interest on or principal of the U.S. Government Obligation evidenced by such depository receipt. "Valuation Date" has the meaning specified in Section 3.12(c). "Vice President", when used with respect to the Company or the Trustee, means any elected vice president, whether or not designated by a word or words added before 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 (other than delivery of any Security to the Trustee for authentication pursuant to Section 3.03), the Company shall furnish to the Trustee such certificates and opinions as may be required under the Trust Indenture Act. Each such certificate or opinion shall be given in the form of an Officers' Certificate, if to be given by an officer of the Company, or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any other requirements set forth in this Indenture. 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, however, 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 pursuant to Section 10.06) shall include: (1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and - 11 - (4) a statement as to whether or not, 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; Record Dates. ----------------------------- (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent 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 Fourteen, 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 are received by the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 6.01) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section. The record of any meeting of Holders of Securities shall be proved in the manner provided in Section 14.06. - 12 - 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 to such execution or by a certificate of a 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 a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. 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. (b) The ownership of Registered Securities shall be proved by the Security Register. (c) The ownership, 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, banker 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 in the amount and with the serial numbers 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. 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. (d) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee, any Security Registrar, any Paying Agent, any Authenticating Agent or the Company in reliance thereon, whether or not notation of such action is made upon such Security. (e) If the Company shall solicit from the Holders of Registered Securities any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company may, at its option, in or pursuant to a Board Resolution, fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall have no obligation to do so. Notwithstanding TIA Section 316(c), if such record date is fixed by Board Resolution, such record date shall be the record date specified in or pursuant to such Board Resolution, which shall be a date not earlier than the date 30 days prior to the first solicitation of Holders generally in connection therewith and not later than the date such solicitation is completed. In the event no such record date is fixed - 13 - by Board Resolution, such record date shall be the later of 10 days prior to the first solicitation of such action or the date of the most recent list of Holders furnished to the Trustee pursuant to Section 7.01. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of Outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than eleven months after the record date, and that no such authorization, agreement or consent may be amended, withdrawn or revoked once given by a Holder, unless the Company shall provide for such amendment, withdrawal or revocation in conjunction with such solicitation of authorizations, agreements or consents or unless and to the extent required by law. Without limiting the foregoing, a Holder entitled hereunder to give or 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 different part of such principal amount. 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, (1) 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 Corporate Trust Office, Attention: Corporate Trust Administration, or (2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to it at the address of its principal office specified in the first paragraph of this instrument, Attention: Treasurer, or at any other address previously furnished in writing to the Trustee by the Company. SECTION 1.06. Notice to Holders; Waiver. ------------------------- Where this Indenture provides for notice of any event to Holders of Registered Securities by the Company or the Trustee, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each such Holder affected by such event, at his address as it appears in the Security Register, not later than the latest date, if any, and not earlier than the earliest date, if any, prescribed for the giving of such notice. 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 shall affect the sufficiency of such notice with respect to other Holders of Registered - 14 - Securities or the sufficiency of any notice to Holders of Bearer Securities given as provided herein. Any notice mailed to a Holder in the manner herein prescribed shall be conclusively deemed to have been received by such Holder, whether or not such Holder actually receives such notice. If by reason of the suspension of or irregularities in regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification to Holders of Registered Securities as shall be made with the approval of the Trustee shall constitute a sufficient notification to such Holders for every purpose hereunder. Except as otherwise expressly provided herein or otherwise specified with respect to any Securities pursuant to Section 3.01, where this Indenture provides for notice to Holders of Bearer Securities of any event, such notice shall be sufficiently given if published in an Authorized Newspaper in the City of New York and, if a Responsible Officer has actual knowledge that the Securities of such series are then listed on the International Stock Exchange of the United Kingdom and the Republic of Ireland and such stock exchange shall so require, in London, and, if a Responsible Officer has actual knowledge that the Securities of such series are then listed on the Luxembourg Stock Exchange and such stock exchange shall so require, in Luxembourg and, if a Responsible Officer has actual knowledge that the Securities of such series are then listed on any other stock exchange outside the United States and such stock exchange shall so require, in any other required city outside the United States or, if not practicable, in Europe on a Business Day at least twice, the first such publication to be not later than the latest date and not earlier than the earliest date prescribed for the giving of such notice, and in such other city or cities as may be specified in such Securities on a Business Day, such publication to be not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. Any such notice shall be deemed to have been given on the date of such publication or, if published more than once, on the date of the first such publication. If 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 such notice with respect to other Holders of Bearer Securities or the sufficiency of any notice to Holders of Registered Securities given as provided herein. 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. Where this Indenture or any Security provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. - 15 - SECTION 1.07. Conflict with Trust Indenture Act. --------------------------------- If any provision hereof limits, qualifies or conflicts with a provision of the TIA that is required under such Act to be a part of and govern this Indenture, the TIA provision shall control. If any provision of this Indenture modifies or excludes any provision of the TIA that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be. SECTION 1.08. Effect of Headings and Table of Contents. ---------------------------------------- The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. SECTION 1.09. Successors and Assigns. ---------------------- All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not. SECTION 1.10. Separability Clause. ------------------- In case any provision in this Indenture or in the Securities or coupons shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. SECTION 1.11. Benefits of Indenture. --------------------- Nothing in this Indenture or in the Securities or coupons, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder, any Paying Agent, Security Registrar and Authenticating Agent and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture. SECTION 1.12. Governing Law. ------------- This Indenture and the Securities and coupons shall be governed by and construed in accordance with the law of the State of New York, but without regard to principles of conflicts of law. SECTION 1.13. Legal Holidays. -------------- In any case where any Interest Payment Date, Redemption Date, Repayment Date, Stated Maturity or Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities or coupons (other than a provision of the Securities of any series which specifically states that such provision shall apply in lieu of this Section)) payment of interest or principal (and premium, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, Repayment Date, Stated Maturity or Maturity, provided that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date, Repayment Date, Stated Maturity or Maturity, as the case may be. - 16 - SECTION 1.14. Counterparts. ------------ This Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Indenture. ARTICLE TWO SECURITY FORMS SECTION 2.01. Forms Generally. --------------- The Registered Securities, if any, and the Bearer Securities and related coupons, if any, of each series shall be in substantially such form (including temporary or permanent global form) as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or market 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. If the form of Securities of any series or coupons is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 3.03 for the authentication and delivery of such Securities or coupons. Unless otherwise specified as contemplated by Section 3.01, Bearer Securities other than Securities in temporary or permanent global form shall have coupons attached. The definitive Securities and coupons, if any, shall be printed, lithographed or engraved or produced by any combination of these methods or may be produced in any other manner permitted by the rules of any securities exchange on which the Securities may be listed, 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 Trustee's Certificate of Authentication. ----------------------------------------------- The Trustee's certificate of authentication on each Security shall be in substantially the following form: This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture. - 17 - ____________________________________ , as Trustee By:_________________________________ (Authorized Officer) SECTION 2.03. Securities Issuable in Global Form. ---------------------------------- If Securities of or within a series are issuable in global form, as specified as contemplated by Section 3.01, then, notwithstanding clause (9) of Section 3.01 and the provisions of Section 3.02, any 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 of such series from time to time endorsed thereon and that the aggregate amount of Outstanding Securities of such series represented thereby may from time to time be increased or decreased to reflect exchanges. 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 by the Trustee 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 3.04. Subject to the provisions of Section 3.03 and, if applicable, Section 3.04, the Trustee shall deliver and redeliver any Security in permanent global form in the manner and upon instructions given by the Person or Persons specified therein or in the applicable Company Order. If a Company Order pursuant to Section 3.03 or 3.04 has been, or simultaneously is, delivered, any instructions by the Company with respect to endorsement, delivery or redelivery of a Security in global form shall be in writing but need not comply with Section 1.02 and need not be accompanied by an Opinion of Counsel. The provisions of the last sentence of Section 3.03(g) shall apply to any Security represented by a Security in global form if such Security was never issued and sold by the Company and the Company delivers to the Trustee the Security in global form together with written instructions (which need not comply with Section 1.02 and need not be accompanied by an Opinion of Counsel) with regard to the reduction in the principal amount of Securities represented thereby, together with the written statement contemplated by the last sentence of Section 3.03(g). Notwithstanding the provisions of Section 3.07, unless otherwise specified as contemplated by Section 3.01, payment of principal of (and premium, if any) and interest, if any, on any permanent Global Security shall be made to the Person or Persons specified therein. Notwithstanding the provisions of Section 3.09 and except as provided in the preceding paragraph, the Company, the Trustee and any agent of the Company and the Trustee shall treat as the Holder of such principal amount of Outstanding Securities represented by a permanent Global Security (i) in the case of a permanent Global Security in registered form, the Holder of such permanent Global Security in registered form, or (ii) in the case of a permanent Global Security in bearer form, Euroclear, CEDEL or such other Person as may be known to the Trustee to be the bearer thereof. - 18 - ARTICLE THREE THE SECURITIES SECTION 3.01. Amount Unlimited; Issuable in Series. ------------------------------------ The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited. The Securities shall rank equally and pari passu and may be issued in one or more series. There shall be established in or pursuant to a Board Resolution, and, subject to Section 3.03, set forth, 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, any or all of the following, as applicable (each of which (except for the matters in clauses (1) and (2)), if so provided, may be determined by the Company with respect to unissued Securities of the series when issued from time to time): (1) the title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any other series); (2) any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 3.04, 3.05, 3.06, 9.06, 11.07 or 13.03 and except for any Securities which, pursuant to Section 3.03, are deemed never to have been authenticated and delivered hereunder); (3) the date or dates, or the method by which such date or dates will be determined or extended, on which the principal of the Securities (and premium, if any), of the series is payable; (4) the rate or rates at which the Securities of the series shall bear interest, or the method or methods by which such rate or rates shall be determined, if any, the date or dates from which such interest shall accrue, or the method by which such date or dates will be determined or extended, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date for any interest payable on any Registered Security on any Interest Payment Date, the circumstances, if any, in which the Company may defer interest payments and the manner of computing interest if other than as specified in Section 3.11; (5) the place or places where, subject to the provisions of Section 10.02, the principal of (and premium, if any) and interest, if any, on Securities of the series shall be payable, any Registered Securities of the series may be surrendered for registration of transfer, Securities of the series may be surrendered for exchange and notices and demands to or upon the Company in respect of the Securities of the series and this Indenture may be served and where notices to Holders pursuant to Section 1.06 will be published; - 19 - (6) the period or periods within which or the date or dates on which, the price or prices at which, and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company; (7) the obligation, if any, of the Company to redeem, repay 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 other terms and conditions upon which, Securities of the series shall be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation; (8) 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, the terms upon which Bearer Securities of the series may be exchanged for Registered Securities of the series (and vice versa) if other than as provided in Sections 3.04 and 3.05, and, in the case of Bearer Securities (or any temporary Global Security representing the same), 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; (9) whether the Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities and, in such case, the Depositary for such Global Security or Securities, whether such global form shall be permanent or temporary and, if so, whether beneficial owners of interests in any such permanent Global Security may exchange such interests for Securities of such series in certificated form and of like tenor of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in this Article Three, and, if applicable, the Exchange Date; (10) whether, and under what conditions, additional amounts will be payable to Holders of Securities of the series pursuant to Section 10.05; (11) the denominations in which any Registered Securities of the series shall be issuable, if other than denominations of $1,000 and any integral multiple thereof, and the denominations in which any Bearer Securities of such series shall be issuable, if other than denominations of $5,000 and any integral multiple thereof; (12) if other than Dollars, the Currency or Currencies of denomination of the Securities of any series, which may be in any Foreign Currency or any composite Currency or index, 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; (13) whether either, both or neither of Section 15.02 or Section 15.03 shall apply to the Securities of the series; (14) if other than Dollars, the Currency, Currencies or currency units in which payment of the principal of (and premium, if any) and interest, if - 20 - any, on any Securities of the series shall be payable and the Currency or Currencies, if any, in which payment of the principal of (and premium, if any) or the interest, if any, 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 time and manner of determining the exchange rate between Currency or Currencies in which such Securities are denominated or stated to be paid and the Currency or Currencies in which such Securities are to be paid, in each case in accordance with, in addition to or in lieu of Section 3.12; (15) if the amount of payments of principal of (or premium, if any) or interest, if any, on any Securities of the series may be determined with reference to an index, the manner in which such amounts shall be determined; (16) the Person to whom any interest on any Registered Security of the series shall be payable, if other than the Person in whose name such Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, the manner in which, or the Person to whom, any interest on any Bearer Security of the series shall be payable, if other than upon presentation and surrender of the coupons appertaining thereto as they severally mature, and the extent to which, or the manner in which, any interest payable on a temporary Global Security on an Interest Payment Date will be paid if other than in the manner provided in Section 3.04; (17) the designation of the initial Exchange Rate Agent, if any; (18) if the Securities of the series are to be convertible into or exchangeable for any securities of any Person (including the Company), the terms and conditions upon which such Securities will be so convertible or exchangeable; (19) 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 5.02; (20) if other than the Trustee, the identity of the Security Registrar and/or Paying Agent; and (21) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by Section 9.01(5)). Except as set forth below, all Securities of any one series and the coupons appertaining to Bearer Securities of such series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to such Board Resolution and (subject to Section 3.03) set forth, or determined in the manner provided, in such Officers' Certificate or in any indenture supplemental 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 - 21 - rates of interest, if any, may be determined, with different dates on which such interest may be payable and with different Redemption or Repayment Dates and may be denominated in different Currencies or payable in different Currencies. If any of the terms of the Securities of any series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers' Certificate setting forth the terms of the series. SECTION 3.02. Denominations. ------------- Securities of each series shall be issuable in such form and denominations as shall be specified in the form of Security for such series approved or established pursuant to Section 2.01 or in the Officers' Certificate delivered pursuant to Section 3.01. In the absence of any specification with respect to the Securities of any series, the Registered Securities of such series, if any (other than Registered Securities in global form, which may be in any denomination), shall be issuable in denominations of $1,000 and any integral multiples thereof and the Bearer Securities of such series, if any (other than Bearer Securities in global form, which may be in any denomination), shall be issuable in denominations of $5,000 and any integral multiple thereof. SECTION 3.03. Execution, Authentication, Delivery and Dating. ---------------------------------------------- (a) The Securities shall be executed on behalf of the Company by its Chairman of the Board, its President, its Treasurer or one of its Vice Presidents, under its corporate seal reproduced thereon, and shall be attested by its Secretary or one of its Assistant Secretaries. The signature of any of these officers on the Securities may be manual or facsimile. Coupons shall bear the facsimile signature of an authorized officer of the Company. Securities or 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 coupons or did not hold such offices at the date of such Securities or coupons. (b) At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series, executed by the Company, to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and, except as otherwise provided in this Article Three, the Trustee in accordance with the Company Order shall authenticate and deliver such Securities; 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, unless otherwise specified with respect to any series of Securities pursuant to Section 3.01, a Bearer Security may be delivered in connection with its original issuance only if the Person entitled to receive such Bearer Security shall have furnished a certificate in the form set forth in Exhibit A-1 to this Indenture or such other certificate as may be specified with respect to any series of Securities pursuant to Section 3.01, dated no earlier than 15 days prior to the earlier of the date on which such Bearer Security is delivered and the date on which any temporary Security first becomes exchangeable for such Bearer Security in accordance with the terms of such temporary Security and this - 22 - Indenture. If any Security shall be represented by a permanent Global Bearer Security, then, for purposes of this Section 3.03 and Section 3.04, the notation of a beneficial owner's interest therein upon original issuance of such Security or upon exchange of a portion of a temporary Global Security shall be deemed to be delivery in connection with its original issuance of such beneficial owner's interest in such permanent Global Security. 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. If all the Securities of any series are not to be issued at one time and if the Board Resolution or supplemental indenture establishing such series shall so permit, such Company Order may set forth procedures acceptable to the Trustee for the issuance of such Securities and determining the terms of particular Securities of such series, such as interest rate, maturity date, date of issuance and date from which interest shall accrue. If the form or terms of the Securities of the series have been established in or pursuant to one or more Board Resolutions as permitted by Sections 2.01 and 3.01, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel stating, (i) if the form of such Securities and coupons, if any, has been established by or pursuant to a Board Resolution as permitted by Section 2.01, that such form has been established in conformity with the provisions of this Indenture; (ii) if the terms of such Securities and coupons, if any, have been established by or pursuant to a Board Resolution as permitted by Section 3.01, that such terms have been established in conformity with the provisions of this Indenture; and (iii) that such Securities and coupons, if any, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles and except further as enforcement thereof may be limited by (1) requirements that a claim with respect to any Securities denominated other than in Dollars (or a Foreign Currency or Currency unit judgment in respect of such claim) be converted into Dollars at a rate of exchange prevailing on a date determined pursuant to applicable law or (2) governmental authority to limit, delay or prohibit the making of payments in Foreign Currencies or Currency units or payments outside the United States. (c) 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, then the Company shall execute and the Trustee shall, in accordance with this Section 3.03, Section 3.04, if and to the extent applicable, and the Company Order 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 principal amount of the Outstanding Securities of such series to be represented by one or more Global Securities, (ii) shall be registered in the name of the Depositary for such Global Security or Securities or the nominee of such Depositary and (iii) shall - 23 - be delivered by the Trustee to such Depositary or a custodian pursuant to such Depositary's instructions. (d) If such form or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee's own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee. (e) Notwithstanding the provisions of Section 3.01 and 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 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. (f) Each Registered Security shall be dated the date of its authentication. Each Bearer Security shall be dated the date contemplated by Section 3.01. (g) No Security or attached coupon shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless executed and issued by the Company and 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 and is entitled to the benefits of this Indenture. 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 shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 3.10, 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. (h) To the extent required by law, each Depositary designated pursuant to Section 3.01 for a Global Security 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. (i) The Securities may contain such notations, legends or endorsements as may be required by law, stock exchange rule or usage. SECTION 3.04. Temporary Securities. -------------------- (a) Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued, in registered form, or, if authorized, in bearer form with one or more coupons or without coupons, and with such appropriate insertions, - 24 - omissions, substitutions and other variations as the officers executing such Securities may determine, as conclusively evidenced by their execution of such Securities. In the case of Securities of any series, such temporary Securities may be in global form. Except in the case of temporary Securities in global form (which shall be exchanged in accordance with Section 3.04(b) or as otherwise provided in or pursuant to a Board Resolution), or as otherwise provided in or pursuant to a Board Resolution, if temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, 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 by any non-matured coupons appertaining thereto), the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of the same series of authorized denominations; provided, however, that unless otherwise contemplated or specified with respect to any series of Securities pursuant to Section 3.01, no definitive Bearer Security shall be delivered in exchange for a temporary Registered Security; and provided further that a Bearer Security shall be delivered in exchange for a Bearer Security only in compliance with the applicable conditions set forth in Sections 3.03, 3.04 and 3.05. 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. (b) Unless otherwise provided in or pursuant to a Board Resolution, this Section 3.04(b) shall govern the exchange of temporary Securities issued in global form. If temporary Securities of any series are issued in global form, any such temporary Global Security shall, unless otherwise provided therein, be delivered to the London office of a Depositary, for the benefit of Euroclear and CEDEL, for credit to the respective accounts of the beneficial owners of such Securities (or to such other accounts as they may direct). 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 (the "Exchange Date"), the Company shall deliver to the Trustee definitive Securities, in aggregate principal amount equal to the principal amount of such temporary Global Security, executed by the Company. On or after the Exchange Date, such temporary Global Security shall be surrendered by the Depositary to the Trustee, 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 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. The definitive Securities to be delivered in exchange for any such temporary Global Security shall be in bearer form, registered form, permanent global bearer form or permanent global registered form, or any combination thereof, as specified as contemplated by Section 3.01, and, if any combination thereof is so specified, as requested by the beneficial owner thereof; provided, however, that, unless otherwise specified in such temporary Global Security, upon such presentation by the Depositary, such temporary Global Security is accompanied by a certificate dated the Exchange Date or a subsequent date and signed by Euroclear as to the portion of such temporary Global Security held for - 25 - its account then to be exchanged and a certificate dated the Exchange Date or a subsequent date and signed by CEDEL as to the portion of such temporary Global Security held for its account then to be exchanged, each in the form, set forth in Exhibit A-2 to this Indenture or in such other form as may be established pursuant to Section 3.01; and provided further that definitive Bearer Securities shall be delivered in exchange for a portion of a temporary Global Security only in compliance with the requirements of Section 3.03, 3.04 and 3.05, as applicable. Unless otherwise specified in such temporary Global Security, the interest of a beneficial owner of Securities of a series in a temporary Global Security shall be exchanged for definitive Securities of the same series and of like tenor following the Exchange Date when the account holder instructs Euroclear, CEDEL or another Person, as the case may be, to request such exchange on his behalf and delivers to Euroclear, CEDEL or such other Person, as the case may be, a certificate in the form set forth in Exhibit A-1 to this Indenture (or in such other form as may be established pursuant to Section 3.01), dated no earlier than 15 days prior to the Exchange Date, copies of which certificate shall be available from the officers of Euroclear and CEDEL, 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 unless such Person takes delivery of such definitive Securities in person at the offices of Euroclear or CEDEL. 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. Until exchanged in full as hereinabove provided, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of the same series and of like tenor authenticated and delivered hereunder, except that, unless otherwise specified as contemplated by Section 3.01, interest payable on a temporary Global Security on an Interest Payment Date for Securities of such series occurring prior to the applicable Exchange Date shall be payable to Euroclear and CEDEL on such Interest Payment Date upon delivery by Euroclear and CEDEL to the Trustee of a certificate or certificates in the form set forth in Exhibit A-2 to this Indenture (or in such other forms as may be established pursuant to Section 3.01), for credit without further interest on or after such Interest Payment Date to the respective accounts of 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, as the case may be, a certificate dated no earlier than 15 days prior to the Interest Payment Date occurring prior to such Exchange Date in the form set forth as Exhibit A-1 to this Indenture (or in such other forms as may be established pursuant to Section 3.01). Notwithstanding anything to the contrary herein contained, the certifications made pursuant to this paragraph shall satisfy the certification requirements of the preceding two paragraphs of this Section 3.04(b) and of Section 3.03(b) of this Indenture and the interests of the Persons who are the beneficial owners of the temporary Global Security with respect to which such certification was made will be exchanged for definitive Securities of the same series and of like tenor on the Exchange Date or the date of certification if such date occurs after the Exchange Date, without further act or deed by such beneficial owners. Except as otherwise provided in this paragraph, no payments of principal (or premium, if any) or interest, if any, owing with respect to a beneficial interest in a temporary Global Security will be made unless and until such interest in such - 26 - temporary Global Security shall have been exchanged for an interest in a definitive Security. Any interest so received by Euroclear and CEDEL and not paid as herein provided shall be returned to the Trustee prior to the expiration of two years after such Interest Payment Date in order to be repaid to the Company. SECTION 3.05. Registration; Registration of Transfer and Exchange. --------------------------------------------------- The Company shall cause to be kept at one of the offices or agencies to be maintained by the Company in accordance with the provisions of this Section 3.05 and Section 10.02, with respect to the Securities of each series which are Registered Securities, a register (herein 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 of transfers of Registered Securities. Pursuant to Section 3.01, the Company shall appoint, with respect to Securities of each series which are Registered Securities, a "Security Registrar" for the purpose of registering such Securities and transfers and exchanges of such Securities as herein provided. The Trustee, at its Corporate Trust office, is initially appointed Security Registrar for such Registered Securities. Upon surrender for registration of transfer of any Registered Security of any series at the office or agency of the Company maintained for such purpose, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Registered Securities of the same series of any authorized denomination or denominations, of like tenor and terms and aggregate principal amount, all as requested by the transferor. At the option of the Holder, Registered Securities of any series may be exchanged for other Registered Securities of the same series of any authorized denomination or denominations, of like tenor and terms and aggregate principal amount, upon surrender of the Registered Securities to be exchanged at such office or agency. Unless otherwise specified with respect to any series of Securities as contemplated by Section 3.01, Bearer Securities may not be issued in exchange for Registered Securities. At the option of the Holder, Bearer Securities of any series may be issued in exchange for Bearer Securities (except as otherwise specified as contemplated by Section 3.01 with respect to a Bearer Security in global form) of the same series, of any authorized denominations and of like tenor and terms and aggregate principal amount, 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 and the Trustee 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; provided, however, that, except as otherwise provided in Section 10.02, interest represented by coupons shall be payable only upon presentation and surrender of those coupons - 27 - at an office or agency located outside the United States. Notwithstanding the foregoing, in case a Bearer Security of any series is surrendered at any such office or agency in a permitted exchange for a Registered Security of the same series and like tenor and terms after the close of business at such office or agency of (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 of payment, as the case may be, and interest or Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date for payment as the case may be, in respect of the Registered Security issued in exchange for such Bearer Security, but will be payable only to the Holder of such coupon when due in accordance with the provisions of this Indenture. 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(h), 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(9) 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 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 in definitive form and 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 and such Depositary. Thereupon, the Company shall execute, and the Trustee shall authenticate and deliver, without service charge, (a) to each Person specified by such Depositary in writing a new Security or Securities of the same series, of like tenor and terms and of any authorized denominations as requested by such person in aggregate - 28 - 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 a 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 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, as shall be specified by the beneficial owner thereof, 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 unless the Company or its agent shall have received from the person entitled to receive the definitive Bearer Security a certificate substantially in the form set forth in Exhibit A-1 and, if applicable, A-2 hereto; and provided further that delivery of a Bearer Security shall occur only outside the United States; and provided further that no definitive Bearer Security will be issued if the Company knows or has reason to know that any such certificate is false. Upon the exchange of a Global Security for Securities in definitive form, such Global Security shall be canceled by the Trustee. Registered Securities issued in exchange for a Global Security pursuant to this Section shall be registered in such names and in such authorized denominations as the Depositary for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee in writing. The Trustee shall deliver such Registered Securities to the persons in whose names such Securities are so registered. The Trustee shall deliver Bearer Securities issued in exchange for a Global Security pursuant to this Section to the persons, 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 unless the Company or its agent shall have received from the person entitled to receive the definitive Bearer Security a certificate substantially in the form set forth in Exhibit A-1 and, if applicable, A-2 hereto; and provided further that delivery of a Bearer Security shall occur only outside the United States; and provided further that no definitive Bearer Security will be issued if the Company has reason to know that any such certificate is false. 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 Registered Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company, the Security Registrar or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing. - 29 - No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer, registration of transfer or exchange of Securities, other than exchanges of Securities expressly provided in this Indenture to be made at the Company's own expense or without expense or without charge to the Holders. The Company shall not be required (i) to issue, register the transfer of or exchange Securities of any particular series to be redeemed for a period of fifteen days preceding the first publication of the relevant notice of redemption or, if Registered Securities are outstanding and there is no publication, the mailing of the relevant notice of redemption of Securities of such series selected for redemption under Section 11.03 and ending at the close of business on the day of such mailing, or (ii) to register the transfer of or exchange any Registered Security so selected for redemption in whole or in part, except the unredeemed portion of such Registered Security being redeemed in part, or (iii) to exchange any Bearer Security so selected for redemption except that such a Bearer Security may be exchanged for a Registered Security of like tenor and terms of that series, provided that such Registered Security shall be simultaneously surrendered 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; neither 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 exchange 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 exchange thereafter 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 a Paying Agent outside the United States or, in the case of a Registered Security, to the Trustee or (ii) the Company and the Trustee receive evidence to their satisfaction of the loss, destruction or theft of any Security or coupon together with, in proper cases, such security or indemnity as may be required by the Company or the Trustee to save each of them or any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor (together with all coupons not destroyed, lost or stolen) a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding with coupons corresponding to any coupons appertaining to the surrendered Security; provided, that any such Bearer Security will be delivered only in compliance with Section 3.03, 3.04 and 3.05, as applicable. 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, with coupons corresponding to the coupons, if any, appertaining to such mutilated, destroyed, lost or stolen Security or to the Security to which such mutilated, destroyed, lost or stolen coupon appertains, pay such Security or coupon; provided, however, that payment of - 30 - principal of (and premium, if any) and interest, if any, on Bearer Securities shall, except as otherwise provided in Section 10.02, be payable only at an office or agency located outside the United States and, unless otherwise specified as contemplated by Section 3.01, any interest on Bearer Securities shall be payable only upon presentation and surrender of the coupons appertaining thereto. Upon the issuance of any new Security or coupon 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 to which a destroyed, lost or stolen coupon appertains, 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 that 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; Optional -------------------------------------------------------- Interest Reset. -------------- (a) Except as otherwise specified with respect to a series of Securities in accordance with the provisions of Section 3.01, interest, if any, on any Registered Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest at the office or agency of the Company maintained for such purpose pursuant to Section 10.02; provided, however, that each installment of interest, if any, on any Registered Security may at the Company's option be paid by (i) mailing a check for such interest, payable to or upon the written order of the Person entitled thereto pursuant to Section 3.09, to the address of such Person as it appears on the Security Register or (ii) transfer to an account maintained by the payee inside the United States. Unless otherwise provided as contemplated by Section 3.01 with respect to the Securities of any series, payment of interest, if any, may be made, in the case of a Bearer Security, at the Holder's option by (i) check in the Currency designated for such payment pursuant to the terms of the Bearer Security presented or mailed to an address outside the United States or (ii) transfer to an account in such Currency maintained by the payee with a bank located outside the United States. Unless otherwise provided as contemplated by Section 3.01, every permanent Global Security will provide that interest, if any, payable on any Interest Payment Date will be paid to each of Euroclear and CEDEL with respect - 31 - respect to that portion of such permanent Global Security held for its account by the Depositary, for the purpose of permitting each of Euroclear and CEDEL to credit the interest, if any, received by it in respect of such permanent Global Security to the accounts of the beneficial owners thereof. 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 in a Place of Payment for such series) 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. Except as otherwise specified with respect to a series of Securities in accordance with the provisions of Section 3.01, any interest on any Registered Security of any series that 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 registered Holder thereof on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (1) or (2) below: (1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Registered Security of such series and the date of the proposed payment (which shall not be less than 30 days after such notice is received by the Trustee), and at the same time the Company shall deposit with the Trustee an amount of money in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 3.01 for the Securities of such series and except, if applicable, as provided in Sections 3.12(b), 3.12(d) and 3.12(e)) 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 on or 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 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of Registered Securities of such series 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 the Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record - 32 - Date and shall no longer be payable pursuant to the following clause (2). 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 for payment of Defaulted Interest, such Bearer Security shall be surrendered without the coupon relating to such proposed date of payment and Defaulted Interest will not be payable on such proposed date of 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. (2) The Company may make payment of any Defaulted Interest on the Registered Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee. (b) The provisions of this Section 3.07(b) may be made applicable to any series of Securities pursuant to Section 3.01 (with such modifications, additions or substitutions as may be specified pursuant to such Section 3.01). The interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable) on any Security of such series may be reset by the Company on the date or dates specified on the face of such Security (each an "Optional Reset Date"). The Company may exercise such option with respect to such Security by notifying the Trustee of such exercise at least 50 but not more than 75 days prior to an Optional Reset Date for such Security. Not later than 40 days prior to each Optional Reset Date, the Trustee shall transmit, in the manner provided for in Section 1.06, to the Holder of any such Security a notice (the "Reset Notice") indicating whether the Company has elected to reset the interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable), and if so (i) such new interest rate (or such new spread or spread multiplier, if applicable) and (ii) the provisions, if any, for redemption during the period from such Optional Reset Date to the next Optional Reset Date or, if there is no such next Optional Reset Date, to the Stated Maturity of such Security (each such period a "Subsequent Interest Period"), including the date or dates on which or the period or periods during which and the price or prices at which such redemption may occur during the Subsequent Interest Period. Notwithstanding the foregoing, not later than 20 days prior to an Optional Reset Date, the Company may, at its option, revoke the interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable) provided for in the Reset Notice and establish an interest rate (or a spread or spread multiplier used to calculate such interest rate, if applicable) that is higher than the interest rate (or the spread or spread multiplier, if applicable) provided for in the Reset Notice, for the Subsequent Interest Period by causing the Trustee to transmit, in the manner provided for in Section 1.06, notice of such higher interest rate (or such higher spread or spread multiplier, if applicable) to the Holder of any such Security. Such notice shall be irrevocable. All Securities with respect to which the interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable) is reset on an Optional Reset Date, and with respect to which the Holders of such Securities have not tendered such Securities for repayment (or have validly revoked any such tender) pursuant to the next succeeding paragraph, will bear - 33 - such higher interest rate (or such higher spread or spread multiplier, if applicable). The Holder of any such Security will have the option to elect repayment by the Company of the principal of such Security on each Optional Reset Date at a price equal to the principal amount thereof plus interest accrued to such Optional Reset Date. In order to obtain repayment on an Optional Reset Date, the Holder must follow the procedures set forth in Article Thirteen for repayment at the option of Holders except that the period for delivery or notification to the Trustee shall be at least 25 but not more than 35 days prior to such Optional Reset Date and except that, if the Holder has tendered any Security for repayment pursuant to the Reset Notice, the Holder may, by written notice to the Trustee, revoke such tender or repayment until the close of business on the tenth day before such Optional Reset Date. Subject to the foregoing provisions of this Section 3.07 and Section 3.05, 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. In the case of any Security that is converted after any Regular Record Date and on or prior to the next succeeding Interest Payment Date (other than any Security whose Maturity is prior to such Interest Payment Date), interest shall be payable on such Interest Payment Date notwithstanding such conversion, and such interest (whether or not punctually paid or duly provided for) shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on such Regular Record Date. Except as otherwise expressly provided in the immediately preceding sentence, in the case of any Security that is converted, interest after the date of conversion of such Security shall not be payable. SECTION 3.08. Optional Extension of Maturity. ------------------------------ The provisions of this Section 3.08 may be made applicable to any series of Securities pursuant to Section 3.01 (with such modifications, additions or substitutions as may be specified pursuant to such Section 3.01). The Stated Maturity of any Security of such series may be extended at the option of the Company for the period or periods specified on the face of such Security (each an "Extension Period") up to but not beyond the date (the "Final Maturity") set forth on the face of such Security. The Company may exercise such option with respect to any Security by notifying the Trustee of such exercise at least 50 but not more than 75 days prior to the Stated Maturity of such Security in effect prior to the exercise of such option (the "Original Stated Maturity"). If the Company exercises such option, the Trustee shall transmit, in the manner provided for in Section 1.06, to the Holder of any such Security not later than 40 days prior to the Original Stated Maturity a notice (the "Extension Notice") indicating (i) the election of the Company to extend the Stated Maturity, (ii) the new Stated Maturity, (iii) the interest rate, if any, applicable to the Extension Period and (iv) the provisions, if any, for redemption during such Extension Period. Upon the Trustee's transmittal of the Extension Notice, the Stated Maturity of such Security shall be extended automatically and, except as modified by the Extension Notice and as described in the next paragraph, such Security will have the same terms as prior to the transmittal of such Extension Notice. - 34 - Notwithstanding the foregoing, not later than 20 days before the Original Stated Maturity of such Security, the Company may, at its option, revoke the interest rate provided for in the Extension Notice and establish a higher interest rate for the Extension Period by causing the Trustee to transmit, in the manner provided for in Section 1.06, notice of such higher interest rate to the Holder of any such Security. Such notice shall be irrevocable. All Securities with respect to which the Stated Maturity is extended will bear such higher interest rate. If the Company extends the Stated Maturity of any Security, the Holder will have the option to elect repayment of such Security by the Company on the Original Stated Maturity at a price equal to the principal amount thereof, plus interest accrued to such date. In order to obtain repayment on the Original Stated Maturity once the Company has extended the Stated Maturity thereof, the Holder must follow the procedures set forth in Article Thirteen for repayment at the option of Holders, except that the period for delivery or notification to the Trustee shall be at least 25 but not more than 35 days prior to the Original Stated Maturity and except that, if the Holder has tendered any Security for repayment pursuant to an Extension Notice, the Holder may by written notice to the Trustee revoke such tender for repayment until the close of business on the tenth day before the Original Stated Maturity. SECTION 3.09. Persons Deemed Owners. --------------------- Prior to due presentment of a Registered Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Registered Security is registered as the owner of such Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to Section 3.05 and 3.07) any interest on such Registered Security and for all other purposes whatsoever, whether or not such Registered Security is overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary. Title to any Bearer Security and any coupons appertaining thereto shall pass by delivery. 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 or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests. Notwithstanding the foregoing, with respect to any Global Security, nothing herein shall prevent the Company, the Trustee, or any agent of the Company or the Trustee, from giving effect to any written certification, proxy or other authorization furnished by any Depositary, as a Holder, with respect to such - 35 - Global Security or impair, as between such Depositary and owners of beneficial interests in such Global Security, the operation of customary practices governing the exercise of the rights of such Depositary (or its nominee) as Holder of such Global Security. SECTION 3.10. Cancellation. ------------ All Securities and coupons surrendered for payment, redemption, repayment at the option of the Holder, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly canceled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold, and all Securities so delivered shall be promptly canceled by the Trustee. If the Company shall so acquire any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are surrendered to the Trustee for cancellation. No Securities shall be authenticated in lieu of or in exchange for any Securities canceled as provided in this Section, except as expressly permitted by this Indenture. All canceled Securities and coupons held by the Trustee shall be disposed of as directed by a Company Order. SECTION 3.11. Computation of Interest. ----------------------- Except as otherwise specified as contemplated by Section 3.01 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months. SECTION 3.12. Currency and Manner of Payments in Respect of Securities. -------------------------------------------------------- (a) Unless otherwise specified with respect to any Securities pursuant to Section 3.01, with respect to Registered Securities of any series not permitting the election provided for in paragraph (b) below or the Holders of which have not made the election provided for in paragraph (b) below, and with respect to Bearer Securities of any series, except as provided in paragraph (d) below, payment of the principal of (and premium, if any) and interest, if any, on any Registered or Bearer Security of such series will be made in the Currency in which such Registered Security or Bearer Security, as the case may be, is payable. The provisions of this Section 3.12 may be modified or superseded with respect to any Securities pursuant to Section 3.01. (b) It may be provided pursuant to Section 3.01 with respect to Registered Securities of any series that Holders shall have the option, subject to paragraphs (d) and (e) below, to receive payments of principal of (or premium, if any) or interest, if any, on such Registered Securities in any of the Currencies which may be designated for such election by delivering to the Trustee for such series of Registered Securities a written election with signature guarantees and in the applicable form established pursuant to Section 3.01, not later than the close of business on the Election Date (as defined below) immediately preceding the applicable payment date. If a Holder so elects to receive such payments in any such Currency, such election will remain in - 36 - effect for such Holder or any transferee of such Holder until changed by such Holder or such transferee by written notice to the Trustee for such series of Registered Securities (but any such change must be made not later than the close of business on the Election Date immediately preceding the next payment date to be effective for the payment to be made on such payment date and no such change of election may be made with respect to payments to be made on any Registered Security of such series with respect to which an Event of Default has occurred or with respect to which the Company has deposited funds pursuant to Article Four or Fifteen or with respect to which a notice of redemption has been given by the Company or a notice of option to elect repayment has been sent by such Holder or such transferee). Any Holder of any such Registered Security who shall not have delivered any such election to the Trustee of such series of Registered Securities not later than the close of business on the applicable Election Date will be paid the amount due on the applicable payment date in the relevant Currency as provided in Section 3.12(a). The Trustee for each such series of Registered Securities shall notify the Exchange Rate Agent as soon as practicable after the Election Date of the aggregate principal amount of Registered Securities for which Holders have made such written election. (c) Unless otherwise specified pursuant to Section 3.01, if the election referred to in paragraph (b) above has been provided for pursuant to Section 3.01, then, unless otherwise specified pursuant to Section 3.01, not later than the fourth Business Day after the Election Date for each payment date for Registered Securities of any series, the Exchange Rate Agent will deliver to the Company a written notice specifying the Currency in which Registered Securities of such series are payable, the respective aggregate amounts of principal of (and premium, if any) and interest, if any, on the Registered Securities to be paid on such payment date, specifying the amounts in such Currency so payable in respect of the Registered Securities as to which the Holders of Registered Securities denominated in any Currency shall have elected to be paid in another Currency as provided in paragraph (b) above. If the election referred to in paragraph (b) above has been provided for pursuant to Section 3.01 and if at least one Holder has made such election, then, unless otherwise specified pursuant to Section 3.01, on the second Business Day preceding such payment date the Company will deliver to the Trustee for such series of Registered Securities an Exchange Rate Officer's Certificate in respect of the Dollar or Foreign Currency or Currencies amount receivable by Holders of Registered Securities who have elected payment in a Currency as provided in paragraph (b) above. Such amounts shall be determined by the Company on the basis of the applicable Market Exchange Rate in effect on the second Business Day (the "Valuation Date") immediately preceding each payment date, and such determination shall be conclusive and binding for all purposes, absent manifest error. (d) If a Conversion Event occurs with respect to a Foreign Currency in which any of the Securities are denominated or payable other than pursuant to an election provided for pursuant to paragraph (b) above, then with respect to each date for the payment of principal of (and premium, if any) and interest, if any, on the applicable Securities denominated or payable in such Foreign Currency occurring after the last date on which such Foreign Currency was used (the "Conversion Date"), the Dollar shall be the currency of payment for use on each such payment date. Unless otherwise specified pursuant to Section 3.01, the Dollar amount to be paid by the Company to the Trustee of each such series of Securities and by such Trustee or any Paying Agent to the Holders of such Securities with respect to such payment date shall be, in the case of a Foreign Currency other than a currency unit, the Dollar Equivalent of the Foreign Currency (as defined below) or, in the case of a currency unit, the Dollar - 37 - Equivalent of the Currency Unit (as defined below), in each case as determined by the Exchange Rate Agent in the manner provided in paragraph (f) or (g) below. (e) Unless otherwise specified pursuant to Section 3.01, if the Holder of a Registered Security denominated in any Currency shall have elected to be paid in another Currency as provided in paragraph (b) above, and a Conversion Event occurs with respect to such elected Currency, such Holder shall receive payment in the Currency in which payment would have been made in the absence of such election; and if a Conversion Event occurs with respect to the Currency in which payment would have been made in the absence of such election, such Holder shall receive payment in Dollars as provided in paragraph (d) of this Section 3.12. (f) "Dollar Equivalent" when used with respect to any Foreign Currency shall be determined by the Exchange Rate Agent and shall be obtained for each subsequent payment date by converting the specified Foreign Currency into Dollars at the Market Exchange Rate on the Conversion Date. (g) "Dollar Equivalent" when used with respect to any currency unit shall be determined by the Exchange Rate Agent and, subject to the provisions of paragraph (h) below, shall be the sum of each amount obtained by converting the Specified Amount (as defined below) of each Component Currency (as defined below) into Dollars at the Market Exchange Rate for such Component Currency on the Valuation Date with respect to each payment. (h) For purposes of this Section 3.12, the following terms shall have the following meanings: A "Component Currency" shall mean any currency which, on the Conversion Date, was a component currency of the relevant currency unit, including, but not limited to, the ECU. A "Specified Amount" of a Component Currency shall mean the number of units of such Component Currency or fractions thereof which were represented in the relevant currency unit, including, but not limited to, the ECU, on the Conversion Date. If after the Conversion Date the official unit of any Component Currency is altered by way of combination or subdivision, the Specified Amount of such Component Currency shall be divided or multiplied in the same proportion. If after the Conversion Date two or more Component Currencies are consolidated into a single currency, the respective Specified Amounts of such Component Currencies shall be replaced by an amount in such single currency equal to the sum of the respective Specified Amounts of such consolidated Component Currencies expressed in such single currency, and such amount shall thereafter be a Specified Amount and such single currency shall thereafter be a Component Currency. If after the Conversion Date any Component Currency shall be divided into two or more currencies, the Specified Amount of such Component Currency shall be replaced by amounts of such two or more currencies, having an aggregate Dollar Equivalent value at the Market Exchange Rate on the date of such replacement equal to the Dollar Equivalent of the Specified Amount of such former Component Currency at the Market Exchange Rate immediately before such division, and such amounts shall thereafter be Specified Amounts and such currencies shall thereafter be Component Currencies. If, after the Conversion Date of the relevant currency unit, including, but not limited to, the ECU, a Conversion Event (other than any event referred to above in - 38 - this definition of "Specified Amount") occurs with respect to any Component Currency of such currency unit and is continuing on the applicable Valuation Date, the Specified Amount of such Component Currency shall, for purposes of calculating the Dollar Equivalent of the Currency Unit, be converted into Dollars at the Market Exchange Rate in effect on the Conversion Date of such Component Currency. "Election Date" shall mean the Regular Record Date for the applicable series of Registered Securities or at least 16 days prior to Maturity, as the case may be, or such other prior date for any series of Registered Securities as specified pursuant to Section 3.01(14) by which the written election referred to in Section 3.12(b) may be made. All decisions and determinations of the Exchange Rate Agent regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the Currency Unit, the Market Exchange Rate and changes in the Specified Amounts as specified above shall be in its sole discretion and shall, in the absence of manifest error, be conclusive for all purposes and irrevocably binding upon the Company, the Trustee for the appropriate series of Securities and all Holders of such Securities denominated or payable in the relevant Currency. The Exchange Rate Agent shall promptly give written notice to the Company and the Trustee for the appropriate series of Securities of any such decision or determination. In the event that the Company determines in good faith that a Conversion Event has occurred with respect to a Foreign Currency, the Company will immediately give written notice thereof to the Trustee of the appropriate series of Securities and Exchange Rate Agent (and such Trustee will promptly thereafter give notice in the manner provided in Section 1.06 to the affected Holders) specifying the Conversion Date. In the event the Company so determines that a Conversion Event has occurred with respect to the ECU or any other currency unit in which Securities are denominated or payable, the Company will immmediately give written notice thereof to the Trustee of the appropriate series of Securities and to the Exchange Rate Agent (and such Trustee will promptly thereafter give notice in the manner provided in Section 1.06 to the affected Holders) specifying the Conversion Date and the Specified Amount of each Component Currency on the Conversion Date. In the event the Company determines in good faith that any subsequent change in any Component Currency as set forth in the definition of Specified Amount above has occurred, the Company will similarly give written notice to the Trustee of the appropriate series of Securities and to the Exchange Rate Agent (and such Trustee will promptly thereafter give notice in the manner provided in Section 1.06 to the affected Holders). The Trustee of the appropriate series of Securities shall be fully justified and protected in relying and acting upon information received by it from the Company and the Exchange Rate Agent and shall not otherwise have any duty or obligation to determine the accuracy or validity of such information independent of the Company or the Exchange Rate Agent. SECTION 3.13. Appointment and Resignation of Successor Exchange Rate Agent. ------------------------------------------------------------ (a) Unless otherwise specified pursuant to Section 3.01, if and so long as the Securities of any series (i) are denominated in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long as it is required under any other provision of this Indenture, then the Company will maintain with respect to each such series of Securities, or as so required, at least one Exchange Rate - 39 - Agent. The Company will cause the Exchange Rate Agent to make the necessary foreign exchange determinations at the time and in the manner specified pursuant to Section 3.01 for the purpose of determining the applicable rate of exchange and, if applicable, for the purpose of converting the issued Foreign Currency into the applicable payment Currency for the payment of principal (and premium, if any) and interest, if any, pursuant to Section 3.12. (b) No resignation of the Exchange Rate Agent and no appointment of a successor Exchange Rate Agent pursuant to this Section shall become effective until the acceptance of appointment by the successor Exchange Rate Agent as evidenced by a written instrument delivered to the Company and the Trustee of the appropriate series of Securities accepting such appointment executed by the successor Exchange Rate Agent. (c) If the Exchange Rate Agent shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of the Exchange Rate Agent for any cause, with respect to the Securities of one or more series, the Company, by or pursuant to a Board Resolution, shall promptly appoint a successor Exchange Rate Agent or Exchange Rate Agents with respect to the Securities of that or those series (it being understood that any such successor Exchange Rate Agent may be appointed with respect to the Securities of one or more or all of such series and that, unless otherwise specified pursuant to Section 3.01, at any time there shall only be one Exchange Rate Agent with respect to the Securities of any particular series that are originally issued by the Company on the same date and that are initially denominated and/or payable in the same Currency). SECTION 3.14. CUSIP Numbers. ------------- The Company in issuing the Securities may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall indicate the "CUSIP" numbers of the Securities in notices of redemption as a convenience to Holders; provided that neither the Company nor the Trustee shall have any responsibility for any defect in the CUSIP number that appears on any Security, check, advice of payment or notice, and any such document may contain a statement to the effect that CUSIP numbers have been assigned by an independent service for convenience of reference and that neither the Company nor the Trustee shall be liable for any inaccuracy in such numbers; and provided further that any such document may state that no representation is made as to the correctness or accuracy of such numbers either as printed on the Securities or as contained in any notice of redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. SECTION 3.15. Certification by a Person Entitled to Delivery of ------------------------------------------------- Bearer Security. --------------- Whenever any provision of this Indenture or a Security contemplates that certification be given by a Person entitled to delivery of a Bearer Security, such certification shall be provided substantially in the form of Exhibit A-1 and, if applicable, A-2 hereto, with only such changes as shall be approved by the Company and consented to by the Trustee whose consent shall not unreasonably be withheld. - 40 - SECTION 3.16. 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, if any, 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, if any, 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 of such payment; (c) if the amount in the Designated Currency that may be purchased falls short of the amount originally due for any reason, the Company shall pay such additional amounts needed to compensate for any short fall; 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. SECTION 3.17. Medium Term Securities. ----------------------- Notwithstanding any contrary provision herein, if all Securities of a series are not to be originally issued at one time, it shall not be necessary for the Company to deliver to the Trustee an Officers' Certificate, Board Resolution, supplemental indenture, Opinion of Counsel or Company Order otherwise required pursuant to Sections 1.02, 3.01 and 3.03 at or prior to the time of authentication of each Security of such series if such documents are delivered to the Trustee or its agent at or prior to the authentication upon original issuance of the first Security of such series to be issued; 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 2.01 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 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 (any such telephonic or electronic instructions to be promptly confirmed in writing by such persons) and that such persons are authorized to determine, consistent with such Company Order, Officers' Certificate, supplemental indenture or Board Resolution, such - 41 - terms and conditions of said Securities as are specified in such Company Order, Officers' Certificate, supplemental indenture or Board Resolution. ARTICLE FOUR SATISFACTION AND DISCHARGE SECTION 4.01. Satisfaction and Discharge of Indenture. --------------------------------------- This Indenture shall cease to be of further effect with respect to any series of Securities (except as to any surviving rights of conversion or transfer or exchange of Securities of such series expressly provided for herein or in the form of Security for such series and rights to receive payments of principal (and premium, if any) and interest, if any, thereon and any right to receive additional amounts, as provided in Section 10.05), and the Trustee, on the demand and at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to such series, when (1) either (A) all Securities of that series theretofore authenticated, issued and delivered and all coupons appertaining thereto (other than (i) coupons appertaining to Bearer Securities of that series surrendered in exchange for Registered Securities of that series and maturing after such exchange, surrender of which is not required or has been waived as provided in Section 3.05; (ii) Securities of that series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.06; (iii) coupons appertaining to Bearer Securities of that series called for redemption or surrendered for repayment and maturing after the relevant Redemption Date or Repayment Date, as appropriate, surrender of which has been waived as provided in Section 11.06 or 13.03; and (iv) Securities of that series for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 10.03), have been delivered to the Trustee for cancellation; or (B) all such Securities of that series and, in the case of (B) (i) or (ii) below, any coupons appertaining thereto, not theretofore delivered to the Trustee cancelled or for cancellation (i) have become due and payable, or (ii) will become due and payable at their Stated Maturity within one year, or (iii) if redeemable at the option of the Company, are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, - 42 - and the Company, in the case of (B) (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose an amount, which shall be immediately due and payable, sufficient to pay and discharge the entire indebtedness on such Securities and such coupons not theretofore delivered to the Trustee cancelled or for cancellation, for principal (and any premium, if any) and interest, if any, to the date of such deposit (in the case of Securities which have become due and payable), or to the Stated Maturity or Redemption Date, or any Repayment Dates, as the case may be; (2) the Company has paid or caused to be paid all other sums payable hereunder by the Company with respect to the Securities of such series; and (3) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture with respect to the Securities of such series have been complied with. Notwithstanding the satisfaction and discharge of this Indenture with respect to the Securities of such series, the obligations of the Company to the Trustee with respect to that series under Section 6.07, the obligations of the Trustee to any Authenticating Agent with respect to that series under Section 6.14 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations of the Trustee under Section 4.02 and the last paragraph of Section 10.03 shall survive. SECTION 4.02. Application of Trust Money. -------------------------- (a) Subject to the provisions of the last paragraph of Section 10.03, all money deposited with the Trustee pursuant to Section 4.01 or 15.04 shall be held in trust and applied by it, in accordance with the provisions of the series of Securities in respect of which it was deposited, the appurtenant coupons and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto of the principal (and premium, if any) and interest, if any, 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. (b) If the Trustee or the Paying Agent is unable to apply any money in accordance with this Article Four with respect to the Securities of any series by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company's obligations under this Indenture and the Securities of such series shall be revived and reinstated as though no deposit had occurred pursuant to this Article Four with respect to Securities of such series until such time as the Trustee or Paying Agent is permitted to apply all money held in trust pursuant to this Section 4.02 with respect to Securities of such series in accordance with this Article Four; provided, however, that if the Company makes any payment of principal, premium or interest on any Security of such series following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of Securities of such series to receive payment from the money so held in trust. - 43 - ARTICLE FIVE REMEDIES SECTION 5.01. Events of Default. ----------------- "Event of Default", wherever used herein with respect to any series of Securities, 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 such event is either inapplicable to a particular series or it is specifically deleted or modified in or pursuant to the supplemental indenture or Board Resolution creating such series of Securities or in the form of Security for such Series: (1) default in the payment of any installment of interest upon any Security of that series or of any coupon appertaining thereto when it becomes due and payable and continuance of such default for a period of 30 days; or (2) default in the payment of the principal of (or premium, if any, on) any Security of that series at its Maturity; or (3) default in the payment of any sinking or purchase fund or analogous obligation when and as the same becomes due by the terms of the Securities of such series; or (4) default in the performance, or breach, of any covenant or warranty of the Company in this Indenture in respect of the Securities of such series (other than a covenant or warranty in respect of the Securities of such series a default in the performance of which or the breach of which is elsewhere in this Section specifically dealt with), all of such covenants and warrants in this Indenture which are not expressly stated to be for the benefit of a particular series of Securities being deemed in respect of the Securities of all series for this purpose, and continuance of such default or breach for a period of 90 consecutive days after receipt by the Company from the Trustee or by the Company and the Trustee from the Holders of at least 25% in principal amount of the Outstanding Securities of such series, of a written notice, by registered or certified mail, specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; or (5)(i) a default occurs under any instrument or instruments (including this Indenture) under which there is at the time outstanding, or by which there may be secured or evidenced, any indebtedness of the Company or any Subsidiary for money borrowed by the Company or any Subsidiary or any guarantee of payment by the Company or any Subsidiary of any obligation of any Person which results in acceleration (whether by declaration or automatically) of, or the nonpayment at maturity (after giving effect to any applicable grace of period) of, such indebtedness or guarantee in an aggregate amount exceeding $15,000,000, in which case the Company shall immediately give notice to the Trustee of such acceleration or nonpayment and (ii) there shall have been a failure to cure such default or to discharge all such defaulted indebtedness or guarantee or such default is not otherwise waived and such acceleration has not been rescinded or annulled within fifteen (15) days after receipt by the Company from the Trustee - 44 - or by the Company and the Trustee from the Holders of at least 25% in aggregate principal amount of the Securities then Outstanding (excluding, if such defaulted indebtedness includes any series of Securities, such series of Securities) of a written notice thereof, by registered or certified mail, and stating that such notice is a "Notice of Default" hereunder; or (6) the entry of an order for relief against the Company under the Federal Bankruptcy Code by a court having jurisdiction in the premises or a decree or order by a court having jurisdiction in the premises adjudging the Company bankrupt or insolvent under any other applicable Federal or State law, or the entry of a decree or order 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 law, or appointing a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 90 consecutive days; or (7) the consent by the Company to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under the Federal Bankruptcy Code or any other applicable Federal or State law, or the consent by it to the filing of any such petition or to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any such action; or (8) any other Event of Default provided in the supplemental indenture or Board Resolution under which such series of Securities is issued or in the form of Security for such series. SECTION 5.02. Acceleration of Maturity; Rescission and Annulment. -------------------------------------------------- If an Event of Default with respect to Securities of any series at the time Outstanding occurs and is continuing, unless the principal amount of all the Securities of such series shall have already become due and payable, then in every such case either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of that series (acting as a separate class) may declare the principal amount (or, if any of the Securities of that series are Original Issue Discount Securities or Indexed Securities, such portion of the principal amount of such Securities as may be specified in the terms thereof) of all of the Outstanding Securities of that series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable. Upon payment to the Holders of such amount, all obligations of the Company in respect of the payment of principal of the Securities of such series shall terminate. At any time after such acceleration with respect to Securities of any series has occurred 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 - 45 - Holders of a majority in principal amount of the Outstanding Securities of that series (and without notice to any Holder of that Series), by written notice to the Trustee, may rescind and annul such declaration and its consequences if: (1) the Company has paid or deposited with the Trustee a sum sufficient to pay, in the Currency in which the Securities of that series are payable (except as may otherwise be specified pursuant to Section 3.01 for such series and except as may be provided in Section 3.12, if and to the extent applicable): (A) all overdue installments of interest on all Outstanding Securities of that series, and any related coupons, (B) the principal of (and premium, if any, on) all Outstanding Securities of that series which have become due otherwise than by such acceleration and any interest thereon at the rate or rates prescribed therefor in such Securities, to the extent that payment of such interest is lawful, (C) interest upon the Defaulted Interest at the rate or rates prescribed therefor in such Securities and any related coupons, to the extent that payment of such interest is lawful, and (D) all sums paid or advanced by the Trustee hereunder, and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and all other amounts due the Trustee under Section 6.07, and (2) all Events of Default with respect to Securities of that series, other than the non-payment of the principal of (or premium, if any) or interest, if any, on Securities of that series which have become due solely by such acceleration, have been cured or waived as provided in Section 5.13. No such rescission shall affect any subsequent default or impair any right consequent thereto. SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee. --------------------------------------------------------------- The Company covenants that if an Event of Default specified in Sections 5.01(1), 5.01(2) or 5.01(3) occurs with respect to Securities of any series, the Company will, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of such Securities and any coupons appertaining thereto, the whole amount then due and payable on such Securities and coupons for principal (and premium, if any) and interest, if any, and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal (and premium, if any) and on any overdue installments of interest, at the rate or rates prescribed therefor in such Securities and coupons, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and all other amounts due the Trustee under Section 6.07. - 46 - 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 Securities of such series 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 Securities of such series, wherever situated. If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series and any related coupons by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy. SECTION 5.04. Trustee May File Proofs of Claim. -------------------------------- In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities of a series or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal (and premium, if any) or interest, if any, in respect) of the Securities of that series 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 any such amount) shall be entitled and empowered, by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of principal (or in the case of Original Issue Discount Securities or Indexed Securities, such portion of the principal as may be provided in the terms thereof) (and premium, if any) and interest, if any, owing and unpaid in respect of such Securities and any appurtenant coupons 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 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 custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder of Securities of such series and coupons 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 such reasonable compensation, expenses, disbursements and advances of the Trustee and any predecessor Trustee, their agents and counsel, and any other amounts due the Trustee or any predecessor Trustee under Section 6.07. - 47 - 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 coupons 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; provided, however, that the Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors' or other similar committee. SECTION 5.05. Trustee May Enforce Claims Without Possession of ------------------------------------------------ Securities or Coupons. --------------------- All rights of action and claims under this Indenture or the Securities or coupons may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.07, be for the ratable benefit of the Holders of the Securities and coupons in respect of which such judgment has been recovered. SECTION 5.06. Application of Money Collected. ------------------------------ Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal (or premium, if any) or interest, if any, upon presentation of the Securities or coupons, or both, and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid: FIRST: To the payment of costs and expenses of collection, including all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses and disbursements of the Trustee, its agents and counsel and all other amounts due the Trustee under Section 6.07; SECOND: To the payment of the amounts then due and unpaid for principal of (and premium, if any) and interest, if any, on the Securities and coupons in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal (and premium, if any) and interest, if any, 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 - 48 - THIRD: The balance, if any, to the Company, its successors or assigns, or to whomever may be lawfully entitled to receive same, or as a court of competent jurisdiction may direct. The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 5.06. At least 15 days before such record date, the Company shall, upon written request of the Trustee, mail to each Holder a notice that states the record date, payment date and amount to be paid. SECTION 5.07. 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 (1) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series; (2) the Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder; (3) such Holder or Holders have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities to be incurred in compliance with such request; (4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and (5) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of that series; it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders. SECTION 5.08. Unconditional Right of Holders to Receive Principal, ---------------------------------------------------- Premium and Interest. -------------------- Notwithstanding any other provision in this Indenture, the Holder of any Security or coupon shall have the right, which is absolute and unconditional, to receive payment of the principal of (and premium, if any) and (subject to Section 3.05 or 3.07) interest, if any, on such Security or 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, as the case may be) and to institute suit for the enforcement of any such payment - 49 - on and after the respective Stated Maturities or applicable Redemption Date or Repayment Date, and such rights shall not be impaired without the consent of such Holder. SECTION 5.09. Restoration of Rights and Remedies. ---------------------------------- If the Trustee or any Holder of any 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, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders of any Security or coupon shall continue as though no such proceeding had been instituted. SECTION 5.10. Rights and Remedies Cumulative. ------------------------------ Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities 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 of any Security or coupon is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. SECTION 5.11. Delay or Omission Not Waiver. ---------------------------- No delay or omission of the Trustee or of any Holder of any Security or coupon to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be. SECTION 5.12. Control by Holders. ------------------ The Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series, provided that: (1) the Trustee shall have the right to decline to follow any such direction if the Trustee, being advised by counsel, determines that the action so directed may not lawfully be taken or would conflict with this Indenture or if the Trustee in good faith shall determine that the proceedings so directed would involve it in personal liability or be unjustly prejudicial to the Holders not taking part in such direction, and - 50 - (2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction. This Section 5.12 shall be in lieu of Section 316 (a)(1)(A) of the Trust Indenture Act and such Section 316 (a)(1)(A) is hereby expressly excluded from this Indenture, as permitted by the Trust Indenture Act. SECTION 5.13. Waiver of Past Defaults. ----------------------- The Holders of not less than a majority in principal amount of the Outstanding Securities of any series may by notice to the Trustee (and without notice to any other Holder) on behalf of the Holders of all the Securities of such series and any related coupons waive any past default hereunder with respect to such series and its consequences, except (if not theretofore cured): (1) an Event of Default described in Section 5.01(1), (2) or (3) or (2) a default 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 or coupons affected. Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereto. This Section 5.13 shall be in lieu of Section 316 (a)(1)(B) of the Trust Indenture Act and such Section 316 (a)(1)(B) is hereby expressly excluded from this Indenture, as permitted by the Trust Indenture Act. SECTION 5.14. 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 or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee or the Company, 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 to which the suit relates, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any) or interest, if any, on any Security on or after the respective Stated Maturities expressed in such Security (or, in the case of redemption or repayment, on or after the Redemption Date or Repayment Date, as the case may be). SECTION 5.15. Waiver of Usury, Stay or Extension Laws. --------------------------------------- - 51 - 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 usury, 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 SIX THE TRUSTEE SECTION 6.01. Certain Duties and Responsibilities. ----------------------------------- (a) Except during the continuance of an Event of Default with respect to any series of Securities, (1) the Trustee shall not be liable except for the performance of such duties and only such duties as are specifically set forth in this Indenture with respect to the Securities of such series, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and (2) in the absence of bad faith on its part, the Trustee may, with respect to Securities of such series, conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture. (b) In case an Event of Default with respect to any series of Securities has occurred and is continuing, the Trustee shall exercise with respect to the Securities of such series such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. (c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that (1) this Subsection shall not be construed to limit the effect of Subsection (a) of this Section; (2) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; - 52 - (3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities of any series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such series; and (4) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section. SECTION 6.02. Notice of Defaults. ------------------ Within 90 days after the occurrence of any default hereunder of which the Trustee has knowledge with respect to Securities of any series, the Trustee shall transmit by mail, in the manner and to the extent provided in TIA Section 313(c), to all Holders of such series, as their names and addresses appear in the Security Register, notice of such default hereunder known to the Trustee, unless such default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal of (or premium, if any) or interest, if any, on any Security of such series or in the payment of any sinking or purchase fund installment or analogous obligation 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 officers of the Trustee in good faith determine that the withholding of such notice is in the interests of the Holders of such series; and provided; further, that in the case of any default of the character specified in Section 5.01(4) with respect to Securities of such series no such notice to Holders 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, an Event of Default with respect to Securities of such series. The Trustee shall not be deemed to have knowledge of any Event of Default or of any event or condition which, with the giving of notice, the passage of time or both, might constitute an Event of Default unless (i) the Trustee has received written notice thereof from the Company or a Holder or (ii) a Responsible Officer of the Trustee shall have actual knowledge thereof. SECTION 6.03. Certain Rights of Trustee. ------------------------- Except as otherwise provided in Section 6.01: (a) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, Officers' Certificate or other - 53 - certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) any instruction, request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution; (c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting to take any action hereunder, the Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers' Certificate; (d) before the Trustee acts or refrains from acting, the Trustee may consult with counsel of its selection and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; (e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Securities of any series or any related coupons pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction: (f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent, reasonably acceptable to the Company, or attorney; (g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys reasonably acceptable to the Company 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 no Depositary or Paying Agent shall be deemed an agent of the Trustee and the Trustee shall not be responsible for any act or omission by any of them; (h) the Trustee shall not be responsible for the computation of any adjustment to the Conversion Price or for any determination as to whether an adjustment is required; and - 54 - (i) 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, rights or powers conferred upon it by this Indenture. SECTION 6.04. Not Responsible for Recitals or Issuance of Securities. ------------------------------------------------------ The recitals contained herein and in the Securities, except the Trustee's certificates of authentication, and in any coupons, shall be taken as the statements of the Company, and the Trustee or any Authenticating Agent assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities or any coupons, except that the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the Securities and perform its obligations hereunder and that the statements made by it in a Statement of Eligibility on Form T-1 supplied to the Company are true and accurate, subject to the qualifications set forth therein. The Trustee or any Authenticating Agent shall not be accountable for the use or application by the Company of Securities or the proceeds thereof. SECTION 6.05. May Hold Securities. ------------------- The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Securities and coupons and, subject to Sections 6.08 and 6.13, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent. SECTION 6.06. Money Held in Trust. ------------------- Subject to the provisions of Section 10.03, all moneys received by the Trustee shall, until used or applied as herein provided, be held by the Trustee in trust hereunder for the purposes for which they were received, and shall be segregated from the funds of the Trustee, other than funds held in trust. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed to in writing by the Company and the Trustee. SECTION 6.07. Compensation and Reimbursement. ------------------------------ The Company agrees: (1) to pay to the Trustee from time to time, and the Trustee shall be entitled to, such compensation as the Company and the Trustee shall from time to time agree in writing for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); (2) 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, - 55 - disbursement or advance as may be attributable to its negligence or bad faith; and (3) to indemnify each of the Trustee and each of the Trustee's directors, officers, employees, agents, successors and assigns (the "Indemnitees") or any predecessor Trustee for, and to hold them harmless against, any and all losses, damages, claims, liabilities or expenses, including taxes (other than taxes based upon, measured by or determined by the income of the Trustee), incurred without negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending the Indemnitees against any claim or liability in connection with the exercise or performance of any of their powers or duties hereunder as Trustee, Authenticating Agent, Security Registrar or Paying Agent. The obligations of the Company under this Section 6.07 to compensate the Trustee, to pay or reimburse the Trustee for expenses, disbursements and advances and to indemnify and hold harmless the Trustee shall constitute additional indebtedness hereunder and shall survive the termination of this Indenture. As security for the performance of such obligations of the Company, the Trustee shall have a claim 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 (and premium, if any, on) or interest, if any, on particular Securities. When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 5.01(6) or Section 5.01(7), the expenses (including reasonable fees and expenses of its counsel) and the compensation for the service in connection therewith are intended to constitute expense of administration under any applicable bankruptcy, insolvency or other similar law. The Trustee shall give the Company notice of any claim or liability for which the Trustee might be entitled to indemnification under subparagraph (3) of this Section 6.07 within a reasonable amount of time after a Responsible Officer becomes actually aware of such claim or liability. SECTION 6.08. Disqualification; Conflicting Interests. --------------------------------------- If the Trustee has or shall acquire a conflicting interest within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee shall either eliminate such 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 such Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under (i) this Indenture with respect to Securities of any particular series of Securities other than that series and (ii) any other indenture or indentures in each case as and to the extent that such series or indenture satisfies the requirements set forth in Section 310(b)(i) of the Trust Indenture Act. Nothing herein shall prevent the Trustee from filing with the Commission the application referred to in the penultimate paragraph of Section 310(b) of the Trust Indenture Act. SECTION 6.09. Corporate Trustee Required; Eligibility. --------------------------------------- - 56 - (a) There shall at all times be a Trustee hereunder with respect to each series of Securities, which shall be either: (i) a corporation organized and doing business under the laws of the United States of America or of any State, the District of Columbia or, for Bearer Securities only, any Territory authorized under such laws to exercise corporate trust powers and subject to supervision or examination by Federal, State, District of Columbia or Territory authority, or (ii) a corporation or other Person organized and doing business under the laws of a foreign government that is permitted to act as Trustee pursuant to a rule, regulation or order of the Commission, authorized under such laws to exercise corporate trust powers, and subject to supervision or examination by authority of such foreign government or a political subdivision thereof substantially equivalent to supervision or examination applicable to United States institutional trustees, in either case having a combined capital and surplus of at least $50,000,000, except that the initial Trustee hereunder shall be required to maintain a combined capital and surplus of at least $10,000,000. 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 shall serve as trustee for the Securities of any series issued hereunder. 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 specified in Section 6.10. (b) The Company may appoint a separate Trustee for any one or more series of Securities. The Trustee for each such series shall be identified in a supplemental indenture and shall be the sole Trustee with respect to such series of Securities and shall have all the rights, duties and obligations as with respect to such series as reserved to the Trustee hereunder as if set forth in such supplemental indenture. SECTION 6.10. Resignation and Removal, Appointment of Successor. ------------------------------------------------- No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 6.11. The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent - 57 - jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series. The Trustee may be removed at any time with respect to the Securities of any series 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. If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of such notice of removal, the Trustee subject to removal may petition any court of competent jurisdiction for the appointment of a successor Trustee. If at any time: (1) the Trustee shall fail to comply with Section 310(b) of the Trust Indenture Act pursuant to Section 6.08 with respect to any series of Securities after written request therefor by the Company or by any Holder of a Security of that series who has been a bona fide Holder of such Security for at least six months, or (2) the Trustee shall cease to be eligible under Section 6.09 with respect to any series of Securities and shall fail to resign after written request therefor by the Company or by any such Holder, or (3) the Trustee shall become incapable of acting with respect to any series of Securities, or (4) the Trustee 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, or (5) the Trustee shall commence a voluntary case under the Federal bankruptcy laws, as now or hereafter constituted, or any other applicable Federal or state bankruptcy, insolvency or similar law or shall consent to the appointment of or taking possession by a receiver, custodian, liquidator, assignee, trustee, sequestrator (or other similar official) of the Trustee or its property or affairs, or shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts generally as they become due, or shall take corporate action in furtherance of any such action, then, in any such case, (i) the Company by a Board Resolution may remove the Trustee with respect to such series, or in the case of clauses (4) or (5), with respect to all series of Securities, or (ii) subject to Section 5.14, 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, or in the case of clauses (4) or (5), with respect to all series of Securities. If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to - 58 - the Securities of one or more series, 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 6.11. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by 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, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 6.11, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders of such series and accepted appointment in the manner required by Section 6.11, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series. 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 to all Holders of Securities of such series in the manner provided in Section 1.06. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office. SECTION 6.11. Acceptance of Appointment by Successor. -------------------------------------- In case of the appointment hereunder of a successor Trustee with respect to all 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 and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its reasonable charges, if any, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder. 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 any applicable series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that - 59 - or those series to which the appointment of such successor Trustee relates, (2) 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 (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in 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. 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 the first two paragraphs of this Section 6.11, as the case may be. No successor Trustee with respect to any 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 and under the Trust Indenture Act. SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business. ----------------------------------------------------------- Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article and under the Trust Indenture Act, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities. SECTION 6.13. Preferential Collection of Claims Against Company. ------------------------------------------------- If and when the Trustee shall be or become a creditor, directly or indirectly, of the Company (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of Section 311(a) of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor), excluding any creditor relationships described in Section 311(b) of the Trust Indenture Act. A Trustee who resigned or has been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent indicated therein. - 60 - SECTION 6.14. Appointment of Authenticating Agent. ----------------------------------- The Trustee, with the prior written approval of the Company, may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 3.06, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee's certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent appointed by the Trustee 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 or, for Bearer Securities only, any Territory of the United States of America, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and, if other than the Company itself, subject to supervision or examination by Federal, State, District of Columbia or such Territory authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then, for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent appointed by the Trustee shall cease to be eligible in accordance with the provisions of this Section 6.14, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section. 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 6.14, 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, if other than the Company, to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent, if other than the Company, and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 6.14, the Trustee, with the approval of the Company, may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall mail written notice of such appointment by first-class mail, postage prepaid, to all Holders of Securities of the series with respect to which such Authenticating Agent will serve, as their names and addresses appear in the Security Register. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor - 61 - 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 6.14. The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section 6.14. If an appointment with respect to one or more series is made pursuant to this Section 6.14, the Securities of such series may have endorsed thereon, in addition to the Trustee's certificate of authentication, an alternative certificate of authentication in the following form: This is one of the Securities of the series designated therein referred to in the within mentioned Indenture. Chemical Trust Company of California, as Trustee By:__________________________________ As Authenticating Agent By:__________________________________ Authorized Officer ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders. --------------------------------------------------------- The Company and any other obligor upon the Securities will furnish or cause to be furnished to the Trustee: (a) semi-annually, not later than 15 days after each Regular Record Date for each series of Securities at the time Outstanding, a list, in such form as the Trustee may reasonably require, containing all information in the possession or control of the Company or any other such obligor, or of any of the Company's or such other obligor's Paying Agents, as to the names and addresses of the Holders of Registered Securities of such series as of the preceding Regular Record Date (or a date to be determined pursuant to Section 3.01 for Original Issue Discount Securities), and (b) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished; - 62 - excluding from any such list names and addresses received by the Trustee in its capacity as Security Registrar. SECTION 7.02. Preservation of Information; Communications to Holders. ------------------------------------------------------ The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders of Registered Securities contained in the most recent list furnished to the Trustee as provided in Section 7.01 and the names and addresses of Holders of Registered Securities received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 7.01 upon receipt of a new list so furnished. The Trustee shall preserve for at least two years the names and addresses of Holders of Bearer Securities filed with the Trustee by such Holders. The rights of the Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided by Section 312(b) of the Trust Indenture Act. Every Holder of Securities or coupons, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act. SECTION 7.03. Reports by Trustee. ------------------ The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to Section 313 of the Trust Indenture Act at the times and in the manner provided pursuant thereto, if so required. A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, with the Commission and with the Company. The Company will notify the Trustee in writing when any Securities are listed on any stock exchange. SECTION 7.04. Reports by Company. ------------------ The Company shall file with the Trustee and the Commission, and transmit to Holders, such information, documents and other reports, and such summaries thereof, as may be required pursuant to Section 314(a) of the Trust Indenture Act at the times and in the manner provided pursuant to the TIA; provided that any such information, documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the same is so required to be filed with the Commission. - 63 - ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms. ---------------------------------------------------- The Company, in a single transaction or through a series of related transactions, shall not consolidate with or merge with or into any other Person or transfer (by lease, assignment, sale or otherwise) all or substantially all of its properties and assets to another Person or group of affiliated Persons, unless: (a) either (1) the Company shall be the continuing corporation or (2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or to which all or substantially all of the properties and assets of the Company are transferred (i) shall be a corporation, partnership or trust organized and validly existing under the laws of the United States of America or any State thereof or the District of Columbia and (ii) shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all of the obligations of the Company under the Securities and this Indenture and the performance of every covenant of this Indenture on the part of the Company to be performed or observed; (b) immediately after giving effect to such transaction, and the assumption contemplated by clause (a) above, no Event of Default, and no event which, after notice or lapse of time, or both, would become an Event of Default, shall have occurred and be continuing; and (c) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with this Article VIII and that all conditions precedent herein provided for relating to such transaction have been satisfied. For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise) of the properties and assets of one or more Subsidiaries (other than to the Company or another wholly-owned Subsidiary), which, if such assets were owned by the Company, would constitute all or substantially all of the properties and assets of the Company, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. SECTION 8.02. Successor Person Substituted. ---------------------------- The successor Person formed by such consolidation or into which the Company is merged or the successor Person to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor had been named as the Company herein, and thereafter, except in the case of a lease of its properties and assets substantially as an entirety, the Company shall be discharged and released from all obligations and covenants under this Indenture and the Securities. The Trustee shall enter into a - 64 - supplemental indenture to evidence the succession and substitution of such successor Person and such discharge and release of the Company. ARTICLE NINE SUPPLEMENTAL INDENTURES SECTION 9.01. Supplemental Indentures Without Consent of Holders. -------------------------------------------------- Without the consent of any Holders of 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: (1) to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company herein and in the Securities; or (2) to add to the covenants of the Company, or to surrender any right or power herein conferred upon the Company, for the benefit of the Holders of all or any series of Securities or coupons (and if such covenants or the surrender of such right or power are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included or such surrenders are expressly being made solely for the benefit of such series); provided that such action pursuant to this clause (2) shall not adversely affect the interests of the Holders of any series or any appurtenant coupons in any material respect; or (3) to add any additional Events of Default (and if such Events of Default are to be applicable to less than all series of Securities, stating that such Events of Default are expressly being included solely to be applicable to such series): or (4) 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 (or premium, if any) on Registered Securities or of principal (or premium, if any) or any interest, if any, on Bearer Securities, to permit Bearer Securities to be issued in exchange for Registered Securities of other authorized denominations or to permit or facilitate the issuance of Securities in uncertificated form; provided that 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 (5) to add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities, provided that any such addition, change or elimination provided for in this clause (5): (i) shall neither (A) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (B) modify the rights of the Holder of any such Security with respect to such provision or (ii) shall become effective only when there is no Outstanding Security; or - 65 - (6) to add to this Indenture such provisions as may be expressly permitted by the Trust Indenture Act, excluding, however, the provisions referred to in Section 316(a)(2) of the Trust Indenture Act as in effect at the date as of which this instrument was executed or any corresponding provision in any similar Federal statute hereafter enacted; or (7) to establish the form or terms of Securities of any series as permitted by Sections 2.01 and 3.01; or (8) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11; or (9) to cure any ambiguity, to correct or supplement any provision herein which may be inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture; provided that such action pursuant to this clause (9) shall not adversely affect the interests of the Holders of Securities of any series or any appurtenant coupons in any material respect; or (10) to comply with the requirements of the Commission in order to effect or maintain the qualification of this Indenture under the Trust Indenture Act. SECTION 9.02. Supplemental Indentures with Consent of Holders. ----------------------------------------------- With the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of each series affected by such supplemental indenture, by Act of said Holders delivered to the Company and the Trustee, the Company, 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 under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby: (1) change the Maturity of the principal of, or the Stated Maturity of any premium on, or any installment of principal of or interest on, any Security, or reduce the principal amount thereof (or premium, if any) or the rate of interest, if any, thereon or any premium payable upon the redemption thereof, or repayment thereof, or change any obligation of the Company to pay additional amounts pursuant to Section 10.05 (except as contemplated by Section 8.01(1) and permitted by Section 9.01(1)) or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02, or change any Place of Payment where, or the Currency in which, any Security (or premium, if any) or interest, if any, thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Maturity or Stated Maturity thereof (or, in the - 66 - case of redemption or repayment, on or after the Redemption Date or Repayment Date, as applicable); or (2) 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 certain defaults hereunder and their consequences provided for in this Indenture or reduce the quorum or voting requirements of Section 14.04; or (3) modify any of the provisions of this Section 9.02 or Section 5.13, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby, provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to "the Trustee" and concomitant changes in this Section 9.02, or the deletion of this proviso, in accordance with the requirements of Section 6.11 and 9.01(8). 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. The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Persons entitled to consent to any indenture supplemental hereto. If a record date is fixed, the Holders on such record date, or their duly designated proxies, and only such Persons, shall be entitled to consent to such supplemental indenture, whether or not such Holders remain Holders after such record date; provided, that unless such consent shall have become effective by virtue of the requisite percentage having been obtained prior to the date which is 120 days after such record date, any such consent previously given shall automatically and without further action by any Holder be cancelled and of no further effect. SECTION 9.03. Execution of Supplemental Indentures. ------------------------------------ In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee's own rights, duties or immunities under this Indenture or otherwise. - 67 - 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 Trust Indenture Act as then in effect. SECTION 9.06. Reference in Securities to Supplemental Indentures. -------------------------------------------------- Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company or the Trustee shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series. SECTION 9.07. Notice of Supplemental Indenture. -------------------------------- Promptly after the execution by the Company and the Trustee of any supplemental indenture applicable to the Holders of Securities of one or more series pursuant to Section 9.02, the Company shall transmit to such Holders a notice setting forth the substance of such supplemental indenture. ARTICLE TEN COVENANTS SECTION 10.01. 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 (and premium, if any) and interest, if any, on the Securities of that series in accordance with the terms of the Securities, any appurtenant coupons and this Indenture. Any interest due on Bearer Securities on or before Maturity, other than additional amounts, if any, payable as provided in Section 10.05 in respect of principal of (or premium, if any, on) such a Security, shall be payable only upon presentation and surrender of the several coupons for such interest installments as are evidenced thereby as they severally mature. Unless otherwise specified with respect to Securities of any series pursuant to Section 3.01, at the option of the Company, all payments of principal may be paid by check to the registered Holder of the Registered Security or other person entitled thereto against surrender of such Security. 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 - 68 - upon presentation and surrender of the several coupons for such interest installments as are evidenced thereby as they severally mature. SECTION 10.02. Maintenance of Office or Agency. ------------------------------- The Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series (but, except as otherwise provided below, unless such Place of Payment is located outside the United States, not Bearer Securities) 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. If Securities of a series are issuable as Bearer Securities, the Company will maintain, subject to any laws or regulations applicable thereto, an office or agency in a Place of Payment for such series which is located outside the United States where Securities of such series and the related coupons may be presented and surrendered for payment (including payment of any additional amounts payable on Securities of such series pursuant to Section 10.05); provided, however, that if the Securities of such series are listed on The Stock Exchange of the United Kingdom and the Republic of Ireland or the Luxembourg Stock Exchange or any other stock exchange located outside the United States and such stock exchange shall so require, the Company will maintain a Paying Agent 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 such series are listed on such exchange. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the principal Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all the presentations, surrenders, notices and demands, 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 10.05) at the place specified for the purpose pursuant to Section 3.01(5). No payment of principal of (or premium, if any) or interest, if any, 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 other 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. - 69 - The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. SECTION 10.03. Money for Securities Payments to Be Held in Trust. ------------------------------------------------- If the Company, a Subsidiary or any of their respective Affiliates shall at any time act as the Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of (or premium, if any) or interest, if any, on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal (and premium, if any) and interest, if any, 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 in writing 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, prior to each due date of the principal of (or premium, if any) or interest, if any, on any Securities of that series, and any appurtenant coupons, deposit with the appropriate Paying Agent a sum sufficient to pay such amount so becoming due, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee in writing of its action or failure so to act. The Company will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section 10.03, that such Paying Agent will (i) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent, (ii) give the Trustee notice in wrting of any default by the Company (or any other obligor upon the Securities of such series) in the making of any payment of principal (and premium, if any) or interest, if any, on the Securities of such series and (iii) during the continuance of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment in respect of the Securities of that series and any appurtenant coupons, and upon the written request of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Securities of that series. The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture with respect to any series of Securities 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, in respect of each and every series of Securities as to which it seeks to discharge this Indenture or, if for any other purpose, all sums so held in trust by the Company in respect of all Securities, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money. - 70 - 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 (or premium, if any) or interest, if any, on any Security of any series or any related coupons and remaining unclaimed for two years after such principal (or 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 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 a newspaper published in the English language, customarily published on each Business Day and of general circulation in the Borough of Manhattan, The City of New York, New York, 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 free of the trust formerly impressed upon it. SECTION 10.04. Purchase of Securities by Company or Subsidiary. ----------------------------------------------- If and so long as the Securities of a series are listed on The Stock Exchange of the United Kingdom and the Republic of Ireland and such stock exchange shall so require, the Company will not, and will not permit any Subsidiary to, purchase any Securities of that series by private treaty at a price (exclusive of expenses and accrued interest) which exceeds 120% of the mean of the nominal quotations of the Securities of that series as shown in The Stock Exchange Daily Official List for the last trading day preceding the date of purchase. SECTION 10.05. Payment of Additional Amounts. ----------------------------- If the Securities of a series provide for the payment of amounts in addition to principal, premium or interest ("additonal amounts"), the Company will pay to the Holder of any security of any such series or any coupon appertaining thereto additional amounts upon the terms and subject to the conditions provided therein. Whenever in this Indenture there is mentioned, in any context, the payment of the principal of (or premium, if any) or interest, if any, on, or in respect of, any Security of any series, 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 the terms of such Securities and this Section 10.05 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 any, if there has been any - 71 - change with respect to the matters set forth in the below-mentioned Officers' Certificate, the Company will furnish the Trustee and the Company's Paying Agent or Paying Agents, if other than the Trustee, with an Officer's Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal of (and premium, if any) or interest, if any, on the Securities of that series shall be made to Holders of Securities of that series or the 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, if any, required by the terms of such Securities and the first paragraph of this Section 10.05. The Company covenants to indemnity 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 10.05. SECTION 10.06. Statement by Officers as to Default. ----------------------------------- (a) Each obligor upon the Securities (including the Company) will deliver to the Trustee, within 120 days after the end of each fiscal year of the Company ending after the date hereof, a certificate from each such obligor's principal executive officer, principal financial officer or principal accounting officer, stating that 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 whether or not to the best knowledge of the signer(s) thereof such obligor is in default in the performance and observance of any of the terms, conditions and covenants of this Indenture (without regard to any period of grace or requirement of notice provided hereunder), and if such obligor shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge. (b) The Company shall deliver to the Trustee as soon as possible, and in any event within five days after the Company becomes aware of the occurrence of any Event of Default, an Officers' Certificate specifying such Event of Default, the period of existence thereof and what action the Company is taking or proposes to take with respect thereto. SECTION 10.07. Existence. --------- Subject to Article Eight, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its legal existence. ARTICLE ELEVEN REDEMPTION OF SECURITIES SECTION 11.01. Applicability of Article. ------------------------ The Company may reserve the right to redeem and pay before Stated Maturity all or any part of the Securities of any series, either by optional redemption, sinking or purchase fund or analogous obligation or otherwise, by provision - 72 - therefor in the form of Security for such series established and approved pursuant to Article Two and Article Three and on such terms as are specified in such form or in the indenture supplemental hereto provided in Section 3.01. Redemption of Securities of any series shall be made in accordance with the terms of such Securities and, to the extent that this Article does not conflict with such terms, the succeeding Sections of this Article. SECTION 11.02. Election to Redeem; Notice to Trustee. ------------------------------------- The election of the Company to redeem any Securities redeemable at the election of the Company shall be evidenced by or pursuant to authority granted by a Board Resolution. 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 of such Redemption Date, of the principal amount of Securities of such series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture or 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 11.03. Selection by Trustee of Securities to Be Redeemed. ------------------------------------------------- If less than all the Securities of like tenor and terms of any series (a "Tranche") are to be redeemed, the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such Tranche not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may include provision for the election for redemption of portions of the principal of Securities of such Tranche of a denomination larger than the minimum authorized denomination for Securities of that series. Unless otherwise provided in the terms of a particular series of Securities, the portions of the principal of Securities so selected for partial redemption shall be equal to the minimum authorized denomination of the Securities of such series, or an integral multiple thereof, and the principal amount which remains outstanding shall not be less than the minimum authorized denomination for Securities of such series. If less than all the Securities of unlike tenor and terms of a series are to be redeemed, the particular Tranche of Securities to be redeemed shall be selected by the Company. The Trustee shall promptly notify the Company in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed. For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed. - 73 - SECTION 11.04. 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: (1) the Redemption Date, (2) the Redemption Price, (3) if less than all the Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption of any Securities, the principal amounts) of the particular Securities to be redeemed, (4) that, on the Redemption Date, the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date, (5) the Place or Places of Payment where such Securities, together in the case of Bearer Securities with all coupons appertaining thereto, if any, maturing after the Redemption Date, are to be surrendered for payment of the Redemption Price and accrued interest, if any, (6) that the redemption is on account of a sinking fund, purchase fund or other obligation, if such is the case, (7) that Bearer Securities may be surrendered for payment only at such place or places outside of the United States, except as otherwise specified in Section 10.02 and unless otherwise specified in such notice, Bearer Securities of any series, if any, surrendered for redemption must be accompanied by all coupons maturing subsequent to the date fixed for redemption or the amount of any such missing coupon or coupons will be deducted from the Redemption Price, unless security or indemnity satisfactory to the Company, the Trustee for such series and any Paying Agent is furnished, (8) if Bearer Securities of any series are to be redeemed and any Registered Securities of such series are not to be redeemed, and if such Bearer Securities may be exchanged for Registered Securities not subject to redemption on the Redemption Date pursuant to Section 3.05 or otherwise, the last date, as determined by the Company, on which such exchanges may be made, and (9) the CUSIP number of such Security, if any. Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company's request, by the Trustee in the name and at the expense of the Company. - 74 - Failure to give such notice to the Holder of any Security or any defect in such notice given to the Holder of any Security shall not affect the validity of the proceedings for any other Security or part thereof. SECTION 11.05. Deposit of Redemption Price. --------------------------- On or prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.03) an amount of money in the Currency in which such Securities are payable sufficient to pay the Redemption Price of all the Securities which are to be redeemed on that date; provided that such amount shall be so deposited with the Trustee or Paying Agent in time for the Trustee or the Paying Agent, as the case may be, to pay such Redemption Price in accordance with its normal procedures. SECTION 11.06. Securities Payable on Redemption Date. ------------------------------------- Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price; provided, however, that installments of interest on Bearer Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable only upon presentation and surrender of coupons for such interest (at an office or agency located outside the United States except as otherwise provided in Section 10.02) and provided further, that, unless otherwise specified in Section 3.01, 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 Registered Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant 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 Bearer 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 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 Redemption 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 upon presentation and surrender of those coupons at an office or agency located outside of the United States except as otherwise provided in Section 10.02. - 75 - If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security. SECTION 11.07. Securities Redeemed in Part. --------------------------- Any Registered Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Registered Security or Securities of the same series and Stated Maturity and of like tenor and terms, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered. ARTICLE TWELVE SINKING FUNDS SECTION 12.01. 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. - 76 - SECTION 12.02. Provisions with Respect to any Sinking Funds. -------------------------------------------- Unless the form or terms of any series of Securities shall provide otherwise, in lieu of making all or any part of any mandatory sinking fund payment with respect to such series of Securities in cash, the Company may at its option (1) deliver to the Trustee for cancellation any Securities of such series theretofore acquired by the Company, or (2) receive credit for any Securities of such series (not previously so credited) acquired by the Company (including by way of optional redemption (pursuant to the sinking fund or otherwise) but not by way of mandatory sinking fund redemption) and theretofore delivered to the Trustee for cancellation, and if it does so then (i) Securities so delivered or credited shall be credited at the applicable sinking fund Redemption Price with respect to Securities of such series, and (ii) on or before the 60th day next preceding each sinking fund Redemption Date with respect to such series of Securities, the Company will deliver to the Trustee (A) an Officers' Certificate specifying the portions of such sinking fund payment to be satisfied by payment of cash and by delivery or credit of Securities of such series acquired by the Company, and (B) such Securities, to the extent not previously surrendered. Such Officers' Certificate shall also state the basis for such credit and that the Securities for which the Company elects to receive credit have not been previously so credited and were not acquired by the Company through operation of the mandatory sinking fund, if any, provided with respect to such Securities and shall also state that no Event of Default with respect to Securities of such series has occurred and is continuing. All Securities so delivered to the Trustee shall be cancelled by the Trustee and no Securities shall be authenticated in lieu thereof. If the sinking fund payment or payments (mandatory or optional) with respect to any series of Securities made in cash plus any unused balance of any preceding sinking fund payments with respect to Securities of such series made in cash shall exceed $50,000 (or a lesser sum if the Company shall so request), unless otherwise provided by the terms of such series of Securities, that cash shall be applied by the Trustee on the sinking fund Redemption Date with respect to Securities of such series next following the date of such payment to the redemption of Securities of such series at the applicable sinking fund Redemption Price with respect to Securities of such series, together with accrued interest, if any, to the date fixed for redemption, with the effect provided in Section 11.06. The Trustee shall select, in the manner provided in Section 11.03, for redemption on such sinking fund Redemption Date a sufficient principal amount of Securities of such series to utilize that cash and shall thereupon cause notice of redemption of the Securities of such series for the sinking fund to be given in the manner provided in Section 11.04 (and with the effect provided in Section 11.06) for the redemption of Securities in part at the option of the Company. Any sinking fund moneys not so applied or allocated by the Trustee to the redemption of Securities of such series shall be added to the next cash sinking fund payment with respect to Securities of such series received by the Trustee and, together with such payment, shall be applied in accordance with the provisions of this Section 12.02. Any and all sinking fund moneys with respect to Securities of any series held by the Trustee at the Maturity of Securities of such series, and not held for the payment or redemption of particular Securities of such series, shall be applied by the Trustee, together with other moneys, if necessary, to be deposited sufficient for the purpose, to the payment of the principal of the Securities of such series at Maturity. On or before such sinking fund Redemption Date provided with respect to - 77 - Securities of any series, the Company shall deposit with the Trustee cash in a sum equal to all accrued interest, if any, to the date fixed for redemption on Securities to be redeemed on such sinking fund Redemption Date pursuant to this Section 12.02; provided that such cash shall be so deposited with the Trustee in time for the Trustee to make the payment of such accrued interest in accordance with its normal procedures. ARTICLE THIRTEEN REPAYMENT AT THE OPTION OF HOLDERS SECTION 13.01. 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 13.02. 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, unless otherwise provided in its terms, be repaid at the applicable Repayment Price together with interest accrued to such Repayment Date as specified pursuant to Section 3.01. SECTION 13.03. 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 10.02. 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 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 10.02. - 78 - 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, 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 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 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 in part, to the portion of the principal of such Security which has been or is to be repaid. SECTION 13.04. 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 Date, Securities of such series from the Holders thereof who give notice and surrender their Securities in accordance with Section 13.03. SECTION 13.05. 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 13.04, 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 borne by such Securities from time to time until payment in full of such principal amount. - 79 - ARTICLE FOURTEEN MEETINGS OF HOLDERS OF SECURITIES SECTION 14.01. 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 14.02. Call, Notice and Place of Meetings. ---------------------------------- (a) 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 14.01, to be held at such time and at such place in the Borough of Manhattan, the City of New York, the City of San Francisco, California 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 no more than 180 days prior to the date fixed for the meeting. (b) 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 14.01, 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 Borough of Manhattan, the City of New York, the City of San Francisco, California or in London for such meeting and may call such meeting for such purposes by giving notice thereof as provided in subsection (a) of this Section. SECTION 14.03. 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. - 80 - SECTION 14.04. 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 which this Indenture expressly provides may be given by the Holders of not less than 66 2/3% in principal amount of the Outstanding Securities of a series, the Persons entitled to vote 66 2/3% 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 this reconvening of any adjourned meeting shall be given as provided in Section 14.02(a), 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 proviso 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 that series, provided, however, that, except as limited by the proviso 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 not less than 66 2/3% 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 66 2/3% in principal amount of the Outstanding Securities of that series; and provided, further, that, except as limited by the proviso 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 14.05. Determination of Voting Rights; Conduct and ------------------------------------------- Adjournment of Meetings. ----------------------- (a) Notwithstanding any other provisions of this Indenture, the - 81 - Company 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 14.02(b), 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 $1.00 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 14.02 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 a meeting; and the meeting may be held as so adjourned without further notice. SECTION 14.06. 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 vote 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 - 82 - 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 14.02 and, if applicable, Section 14.01. 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 FIFTEEN DEFEASANCE AND COVENANT DEFEASANCE SECTION 15.01. Company's Option to Effect Defeasance or Covenant Defeasance. ------------------------------------------------------------ The Company may elect, at its option by Board Resolution at any time, to have either Section 15.02 or Section 15.03 applied to the Outstanding Securities of any series designated pursuant to Section 3.01 as being defeasible, and any related coupon, pursuant to this Article Fifteen (hereinafter called a "Defeasible Series"), upon compliance with the conditions set forth below in this Article Fifteen. SECTION 15.02. Defeasance and Discharge. ------------------------ Upon the Company's exercise of the option provided in Section 15.01 to have this Section 15.02 applied to the Outstanding Securities of any Defeasible Series, the Company shall be deemed to have been discharged from its obligations with respect to the Outstanding Securities of such series and any related coupons as provided in this Section on and after the date the conditions set forth in Section 15.04 are satisfied (hereinafter called "Defeasance"). For this purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the Outstanding Securities of such series and to have satisfied all its other obligations under the Securities of such series and this Indenture insofar as the Securities of such series are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), subject to the following which shall survive until otherwise terminated or discharged hereunder: (1) the rights of Holders of Securities of such series to receive, solely from the trust fund described in Section 15.04 and as more fully set forth in such Section, payments in respect of the principal of (and premium, if any) and interest, if any, on such Securities of such series when payments are due, (2) the Company's obligations with respect to the Securities of such series under Sections 3.04, 3.05, 3.06, 10.02, 10.03 and any additional amounts under Section 10.05, (3) the rights, powers, trusts, duties and immunities of the Trustee hereunder including, but not limited to, pursuant to Section 6.07 and (4) this Article Fifteen. Subject to compliance with this Article Fifteen, the Company may exercise its option provided in Section 15.01 to have this Section 15.02 applied to the Outstanding Securities of any Defeasible Series notwithstanding the prior exercise of its option provided in Section 15.01 to have Section 15.03 applied to the Outstanding Securities of such series and any related coupons. SECTION 15.03. Covenant Defeasance. ------------------- - 83 - Upon the Company's exercise of the option provided in Section 15.01 to have this Section 15.03 applied to the Outstanding Securities of any Defeasible Series and any related coupons, (1) the Company shall be released from its obligations under Sections 8.01 and 10.07 and (2) the occurrence of any event specified in Sections 5.01(3), 5.01(4) (with respect to any of Sections 8.01 and 10.07) and 5.01(8) shall be deemed not to be or result in an Event of Default, in each case with respect to the Outstanding Securities of such series as provided in this Section 15.03 on and after the date the conditions set forth in Section 15.04 are satisfied (hereinafter called "Covenant Defeasance"). For this purpose, such Covenant Defeasance means that the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such specified Section (to the extent so specified in the case of Section 5.01(4)), whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other provision herein or in any other document, but the remainder of this Indenture and the Securities of such series shall be unaffected thereby. SECTION 15.04. Conditions to Defeasance or Covenant Defeasance. ----------------------------------------------- The following shall be the conditions to application of either Section 15.02 or Section 15.03 to the Outstanding Securities of any Defeasible Series: (1) The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee that satisfies the requirements contemplated by Section 6.09 and agrees to comply with the provisions of this Article Fifteen applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of Outstanding Securities of such series, (A) money in an amount (in such Currency in which such Securities and any coupons appertaining thereto are then specified as payable at Stated Maturity), (B) U.S. Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (C) a combination thereof, in each case sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or any such other qualifying Trustee) to pay and discharge, the principal of (and premium, if any) and interest, if any, on the Securities of such series on the respective Stated Maturities, in accordance with the terms of this Indenture and the Securities of such series. (2) In the case of an election under Section 15.02, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the date first set forth hereinabove, there has been a change in the applicable Federal income tax law, in either case (A) or (B) to the effect that, and based thereon such opinion shall confirm that, the Holders of the Outstanding Securities of such series will not recognize gain or loss for Federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to the Securities of such series and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case - 84 - if such deposit, Defeasance and discharge were not to occur. (3) In the case of an election under Section 15.03, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the Outstanding Securities of such series will not recognize gain or loss for Federal income tax purposes as result of the deposit and Covenant Defeasance to be effected with respect to the Securities of such series and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur. (4) The Company shall have delivered to the Trustee an Officers' Certificate to the effect that the Securities of such series, if then listed on any securities exchange, will not be delisted as a result of such deposit. (5) No Event of Default or event that (after notice or lapse of time or both) would become an Event of Default shall have occurred and be continuing at the time of such deposit or, with regard to any Event of Default or any such event specified in Sections 5.01 (6) and (7), at any time on or prior to the 90th day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 90th day), . (6) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act. (7) Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Company is a party or by which it is bound. (8) Such Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act of 1940, as amended, unless such trust shall be qualified or exempt from regulation thereunder. (9) The Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with. SECTION 15.05. Deposited Money and U.S. Government Obligations to be Held ---------------------------------------------------------- In Trust, Other Miscellaneous Provisions. ---------------------------------------- Subject to the provisions of the last paragraph of Section 10.03, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying trustee (solely for purposes of this Section 15.05 and Section 15.06, the Trustee and any such other trustee are referred to collectively as the "Trustee") pursuant to Section 15.04 in respect of the Securities of any Defeasible Series and any related coupons shall be held in trust and applied by the Trustee, in accordance with the provisions of the - 85 - Securities and the related coupons, if any, of such series and this Indenture, to the payment, either directly or through any such Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of Securities of such series, of all sums due and to become due thereon in respect of principal and any premium and interest, but money so held in trust need not be segregated from other funds except to the extent required by law. Unless otherwise specified with respect to any Security pursuant to Section 3.01, if, after a deposit referred to in Section 15.04(a) has been made, (a) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.12(b) or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 15.04(a) has been made in respect of such Security, or (b) a Conversion Event occurs as contemplated in Section 3.12(d) or 3.12(e) or by the terms of any Security in respect of which the deposit pursuant to Section 15.04(a) has been made, the indebtedness represented by such Security and any coupons appertaining thereto shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any) and interest, if any, on such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on the applicable Market Exchange Rate for such Currency in effect on the second Business Day prior to each payment date, except, with respect to a Conversion Event, for such Currency in effect (as nearly as feasible) at the time of the Conversion Event. The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 15.04 or the principal and interest received in respect thereof other than any such tax, fee or other charge that by law is for the account of the Holders of Outstanding Securities. Anything in this Article Fifteen to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or U.S. Government Obligations held by it as provided in Section 15.04 with respect to Securities of any Defeasible Series that, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Defeasance or Covenant Defeasance with respect to the Securities of such series. SECTION 15.06. Reinstatement. ------------- If the Trustee or the Paying Agent is unable to apply any money in accordance with this Article Fifteen with respect to the Securities of any series by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company's obligations under this Indenture and the Securities of such series shall be revived and reinstated as though no deposit had occurred pursuant to this Article Fifteen with respect to Securities of such series until such time as the Trustee or Paying Agent is permitted to apply all money held in trust pursuant to Section 15.05 with respect to Securities of such series in accordance with this Article Fifteen; provided, however, that if the Company makes any payment of principal of (or premium, if any) or interest, if any, on - 86 - any Security of such series following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of Securities of such series to recover such payment from the money so held in trust. ARTICLE SIXTEEN CONVERSION OF SECURITIES SECTION 16.01. Conversion Privilege and Conversion Price. ----------------------------------------- If the Securities of a series are convertible, which shall be specified in the manner contemplated in Section 3.01, and upon compliance with the provisions of this Article, at the option of the Holder thereof, any Security or any portion of the principal amount thereof may be converted into fully paid and nonassessable shares of Common Stock of the Company, at the conversion price in effect at the time of conversion. The periods within which or the dates on which, the prices at which and the terms and conditions upon which Securities may be so converted shall be specified in the manner contemplated by Section 3.01. In case a Security or portion thereof is called for redemption or is repurchased, such conversion right in respect of the Security or portion so called shall expire at the close of business on the Redemption Date or the repurchase date, unless the Company defaults in making the payment due upon redemption or repurchase. In case the Company shall, by dividend or otherwise, declare or make a distribution on its Common Stock referred to in paragraph (4) or (5) of Section 16.04, the Holder of each Security, upon the conversion thereof pursuant to this Article subsequent to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution and prior to the effectiveness of the conversion price adjustment in respect of such distribution pursuant to paragraph (4) or (5) of Section 16.04, shall also be entitled to receive for each share of Common Stock into which such Security is converted, the portion of the evidences of indebtedness, shares of Capital Stock, cash and assets so distributed applicable to one share of Common Stock, provided that, at the election of the Company (whose election shall be evidenced by a Board Resolution) with respect to all Holders so converting, the Company may, in lieu of distributing to such Holder any portion of such distribution not consisting of cash or securities of the Company, pay such Holder an amount in cash equal to the fair market value thereof (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution). If any conversion of a Security described in the immediately preceding sentence occurs prior to the payment date for a distribution to holders of Common Stock that the Holder of the Security so converted is entitled to receive in accordance with the immediately preceding sentence, the Company may elect (such election to be evidenced by a Board Resolution) to distribute to such Holder a due bill for the evidences of indebtedness, shares of Capital Stock, cash or assets to which such Holder is so entitled, provided that such due bill (i) meets any applicable requirements of the principal national securities exchange or other market on which the Common Stock is then traded and (ii) requires payment or delivery of such evidences of indebtedness, shares of Capital Stock, cash or assets no later than the date of payment or delivery thereof to holders of Common Stock receiving such distribution. SECTION 16.02. Exercise of Conversion Privilege. -------------------------------- - 87 - In order to exercise the conversion privilege referred to in this Article 16, the Holder of any Security to be converted shall surrender such Security, duly endorsed or assigned to the Company or in blank in the case of Registered Securities, together in the case of Bearer Securities with all matured coupons and any matured coupons in default appertaining thereto, at any office or agency of the Company maintained for that purpose pursuant to Section 10.02, accompanied by written notice to the Company at such office or agency that the Holder elects to convert such Security or, if less than the entire principal amount thereof is to be converted, the portion thereof to be converted. Registered Securities surrendered for conversion during the period from the close of business on any Regular Record Date next preceding any Interest Payment Date to the opening of business on such Interest Payment Date shall (except in the case of Registered Securities or portions thereof that have been called for redemption, or are to be repurchased, on such Interest Payment Date or a Redemption Date or a repurchase date within the period beginning on such Regular Record Date and ending on such Interest Payment Date) be accompanied by payment by wire transfer or certified check or other funds acceptable to the Company of an amount equal to the interest payable on such Interest Payment Date on the principal amount of the Registered Security then being converted. Except as provided in the preceding sentence and subject to the last paragraph of Section 3.07, no payment or adjustment shall be made upon any conversion on account of any interest accrued on the securities surrendered for conversion or on account of any dividends on the Common Stock issued upon conversion. Securities shall be deemed to have been converted immediately prior to the close of business on the day of surrender of such Securities for conversion in accordance with the foregoing provisions, and at such time the rights of the Holders of such Securities as Holders shall cease, and the person or persons entitled to receive the Common Stock issuable upon conversion shall be treated for all purposes as the record holder or holders of such Common Stock at such time. As promptly as practicable on or after the conversion date, the Company shall issue and shall deliver at such office or agency a certificate or certificates for the number of full shares of Common Stock issuable upon conversion, together with payment in lieu of any fraction of a share, as provided in Section 16.03. In the case of any Security that is converted in part only, upon such conversion the Company shall execute and the Trustee shall authenticate and deliver to the Holder thereof, at the expense of the Company, a new Security or Securities of authorized denominations in aggregate principal amount equal to the unconverted portion of the principal amount of such Security, along with any coupons appertaining thereto, if applicable. SECTION 16.03. Fractions of Shares. ------------------- No fractional shares of Common Stock shall be issued upon conversion of Securities. If more than one Security shall be surrendered for conversion at one time by the same Holder, the number of full shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate principal amount of the Securities (or, in the case of Registered Securities, specified portions thereof) so surrendered. Instead of any fractional share of Common Stock that would otherwise be issuable upon conversion of any Security or Securities (or, in the case of Registered Securities, specified portions thereof), the Company shall pay a cash adjustment in respect of such fraction in an amount equal to the same fraction of the Closing Price at the close of business on the date of conversion. - 88 - SECTION 16.04. Adjustment of Conversion Price. ------------------------------ (1) In case the Company shall pay or make a dividend or other distribution on its Common Stock exclusively in stock or shall pay or make a dividend or other distribution on any other class of Capital Stock of the Company which dividend or distribution includes Common Stock, the conversion price in effect at the opening of business on the day following the day fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. (2) Subject to the last sentence of paragraph (7) of this Section, in case the Company shall pay or make a dividend or other distribution on its Common Stock consisting exclusively of, or shall otherwise issue to all holders of its Common Stock, rights or warrants entitling the holders thereof to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights or warrants, the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall not issue any rights or warrants in respect of shares of Common Stock held in the treasury of the Company. (3) In the event that outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in the event that outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price - 89 - in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective. (4) Subject to the last sentence of this paragraph (4), in the event that the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of Capital Stock, cash or assets (including securities, but excluding any rights or warrants referred to in paragraph (2) of this Section, excluding any dividend or distribution paid exclusively in cash and excluding any dividend or distribution referred to in paragraph (1) of this section), the conversion price shall be reduced to be equal to the price determined by multiplying the conversion price in effect immediately prior to the effectiveness of the conversion price reduction contemplated by this paragraph (4) by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date of such effectiveness less the fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), on the date of such effectiveness of the portion of the evidences of indebtedness, shares of Capital Stock, cash and assets so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such reduction to become effective immediately prior to the opening of business on the day following the later of (a) the date fixed for the payment of such distribution and (b) the date 20 days after the notice relating to such distribution is given pursuant to Section 16.06(a) (such later date of (a) and (b) being referred to as the "Reference Date"). If the Board of Directors determines the fair market value of any distribution for purposes of this paragraph (4) by reference to the actual or when issued trading market for any securities comprising such distribution, it must in doing so consider the prices in such market over the same period used in computing the current market price per share pursuant to paragraph (8) of this Section. For purposes of this paragraph (4), any dividend or distribution that includes shares of Common Stock, rights or warrants to subscribe for or purchase shares of Common Stock or other securities convertible into or exchangeable for shares of Common Stock shall be deemed instead to be (a) a dividend or distribution of the evidences of indebtedness, cash, assets or shares of Capital Stock other than such shares of Common Stock, such rights or warrants or such other convertible or exchangeable securities (making any conversion price reduction subject to this paragraph (4)), immediately followed by (b) in the case of such shares of Common Stock or such rights or warrants, a dividend or distribution thereof (making any further conversion price reduction subject to paragraph (1) or (2) of this Section, except (i) the Reference Date of such dividend or distribution as defined in this paragraph (4) shall be substituted for "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraphs (1) and (2) of this Section and (ii) any shares of Common Stock included in such dividend or distribution shall not be deemed "outstanding at the close of business on the date fixed for such determination" within the meaning of paragraph (1) of this Section) or (c) in the case of such other convertible or exchangeable securities, a dividend or distribution of such number of shares of Common Stock as would then be issuable upon the conversion or exchange thereof, whether or not the conversion or exchange of such securities is subject to any conditions (making any further conversion price reduction subject to paragraph (1) of this Section, except (i) the Reference Date of such dividend or distribution as defined in this paragraph (4) shall be substituted as "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" and (ii) the shares deemed to constitute such dividend or distribution shall not be - 90 - deemed "outstanding at the close of business on the date fixed for such determination", each within the meaning of paragraph (1) of this Section). (5) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (excluding any cash that is distributed as part of a distribution referred to in paragraph (4) of this Section) in an aggregate amount that, together with (i) the aggregate amount of any other distributions to all holders of its Common Stock made exclusively in cash within the 12 months preceding the date of payment of such distribution and in respect of which no conversion price adjustment pursuant to this paragraph (5) or paragraph (6) below has been made and (ii) the aggregate of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of any other consideration payable in respect of any tender offer by the Company or a subsidiary for all or any portion of the Company's Common Stock concluded within the 12 months preceding the date of payment of such distribution and in respect of which no conversion price adjustment pursuant to paragraph (8) of this Section has been made, exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for stockholders entitled to receive such distribution, times the number of shares of Common Stock outstanding on such date, the conversion price shall be reduced so that the same shall equal the price determined by multiplying the conversion price in effect immediately prior to the effectiveness of the conversion price reduction contemplated by this paragraph (5) by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date of such effectiveness less the amount of cash so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such reduction to become effective immediately prior to the opening of business on the later of (a) the day following the date fixed for the payment of such distribution and (b) the date 20 days after the notice relating to such distribution is given pursuant to Section 16.06 (if such notice is required to be given). (6) In the event that a tender offer made by the Company or any Subsidiary for all or any portion of the Company's Common Stock shall expire and such tender offer shall involve an aggregate consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) on the last time (the "Expiration Time") tenders may be made pursuant to such tender offer (as it may be amended) that, together with (i) the aggregate amount of cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of any other consideration payable in respect of any tender offer by the Company or a Subsidiary for all or any portion of the Company's Common Stock expiring within the 12 months preceding the expiration of such tender offer and in respect of which no conversion price adjustment pursuant to this paragraph (6) or paragraph (5) above has been made and (ii) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 12 months preceding the expiration of such tender offer and in respect of which no conversion price adjustment pursuant to paragraph (5) of this Section has been made exceeds 5% of the product of the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock at the Expiration Time multiplied by the number of - 91 - shares of Common Stock outstanding (including any tendered shares) at the Expiration Time, the conversion price shall be reduced so that the same shall equal the price determined by multiplying the conversion price in effect immediately prior to the Expiration Time by a fraction of which the numerator shall be (i) the product of the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock at the Expiration Time multiplied by the number of shares of Common Stock outstanding (including any tendered shares) at the Expiration Time minus (ii) the fair market value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the "Purchased Shares") and the denominator shall be the product of (i) such current market price per share at the Expiration Time multiplied by (ii) such number of outstanding shares at the Expiration Time less the number of Purchased Shares, such reduction to become effective immediately prior to the opening of business on the day following the Expiration Time. No such adjustment shall be made in the event of any purchase pursuant to Rule 10b-18 under the Exchange Act. (7) The reclassification of Common Stock into any security or securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 16.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be the "Reference Date" within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective", or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this Section). Rights or warrants issued by the Company to all holders of its Common Stock entitling the holders thereof to subscribe for or purchase shares of Common Stock or preferred stock of the Company, which rights or warrants (i) are deemed to be transferred with such shares of Common Stock, (ii) are not exercisable and (iii) are also issued in respect of future issuance of Common Stock, in the case of each of clauses (i) through (iii), until the occurrence of a specified event or events ("Trigger Event"), shall for purposes of this Section 16.04 not be deemed issued and the distribution thereof not be deemed made or paid until the occurrence of the earliest Trigger Event. (8) For the purpose of any computation under this paragraph and paragraphs (2), (4) and (5) of this Section, the current market price per share of Common Stock on any date shall be deemed to be the average of the Closing Prices for the five consecutive Trading Days selected by the Company commencing not more than 20 Trading Days before, and ending not later than, the date in question; provided, that such market price shall be appropriately adjusted by the Board (which adjustment shall be conclusive and shall be evidenced by a Board Resolution) to take into account the occurrence, during the period commencing on the first of such Trading Days during such five Trading Day period and ending on the date in question, of any event that requires an adjustment in the conversion price under this Section 16.04. For the purpose of any computation under paragraph (6) of this Section, the current market price per share of Common - 92 - Stock on any date shall be deemed to be the average of the daily Closing Prices for the five consecutive Trading Days selected by the Company commencing on or after the latest of the date (any such date, the "Commencement Date") (i) 20 Trading Days before the date in question, (ii) of commencement of the tender offer requiring such computation and (iii) of the last amendment, if any, of such tender offer involving a change in the maximum number of shares for which tenders are sought or a change in the consideration offered, and ending not later than the Expiration Time of such tender offer; provided, that such market price shall be appropriately adjusted by the Board (which adjustment shall be conclusive and shall be evidenced by a Board Resolution) to take into account the occurrence, during the period commencing on the first of such Trading Days during such five Trading Day period and ending on the date in question, of any event that requires an adjustment in the conversion price under this Section 16.04. (9) The Company may make such reductions in the conversion price, in addition to those required by this Section, as it considers to be advisable in order that any event treated for Federal income tax purposes as a dividend of stock or stock rights shall not be taxable to the recipients. (10) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least 1% in the conversion price; provided, however, that any adjustments which by reason of this paragraph (10) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. - 93 - (11) Notwithstanding any other provision of this Section 16.04, no adjustment to the conversion price shall (unless permitted by New Jersey law) reduce the conversion price below the then par value per share of the Common Stock, and any such purported adjustment shall instead reduce the conversion price to such par value. The Company hereby covenants not to take any action that would or does result in any adjustment in the conversion price that, if made without giving effect to the previous sentence, would cause the conversion price to be less than the then par value per share of the Common Stock, unless such action is permitted by New Jersey law. (12) If all of the shares of the Common Stock issuable upon exercise or conversion of such rights, warrants or options have not been issued when such rights, warrants or options expire, then the conversion price shall promptly be readjusted to the conversion price which would then be in effect had the adjustment upon the issuance of such rights, warrants or options have been made on the basis of the actual number of shares of Common Stock issued upon the exercise of such rights, warrants or options. SECTION 16.05. Notice of Adjustments of Conversion Price. ----------------------------------------- Whenever the conversion prices are adjusted as herein provided and at such other times as the Trustee shall request: (a) the Company shall compute the adjusted conversion price in accordance with Section 16.04 and shall prepare a certificate signed by the Chief Financial Officer of the Company setting forth the adjusted conversion price and showing in reasonable detail the facts upon which such adjustment is based, and such certificate shall forthwith be delivered to the Trustee and filed at each office or agency maintained for the purpose of conversion of Securities pursuant to Section 10.02. The certificate shall be conclusive evidence that the adjustment is correct. The Trustee shall not be under any duty or responsibility with respect to any such certificate except to exhibit the same to any Holder desiring inspection thereof, and (b) a notice stating that the conversion price has been adjusted and setting forth the adjusted conversion price shall forthwith be required, and, when the conversion price is adjusted, as soon as practicable after it is required, the Company shall cause such notice to be mailed to all Holders of Registered Securities at their last address as they shall appear in the Security Register. SECTION 16.06 Notice of Certain Corporate Action. ---------------------------------- In the event: (a) that the Company shall declare a dividend (or any other distribution) on its Common Stock; or (b) that the Company shall authorize the granting to the holders of its Common Stock generally of rights or warrants to subscribe for or purchase any shares of Capital Stock of any class or of any other rights; or (c) of the occurrence of any reclassification of the Common Stock of the Company (other than a subdivision or combination of the outstanding shares of Common Stock), or of any consolidation or merger to which the Company is a party and for which approval of any stockholders of the Company is required, or of the sale or transfer of all or substantially all of the assets of the Company; or - 94 - (d) of the voluntary or involuntary dissolution, liquidation or winding up of the Company; or (e) that the Company or any Subsidiary shall commence a tender offer for all or a portion of the Company's outstanding shares of Common Stock (or shall amend any such tender offer); then the Company shall notify the Trustee and cause to be filed at each office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02, and shall cause to be mailed to all Holders of Registered Securities at their last addresses as they shall appear in the Security Register, at least 20 days (or 10 days in any case specified in clause (a) or (b) above) prior to the applicable record date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, rights or warrants, or, if a record is not to be taken, the date as of which the holders of Common Stock of record to be entitled to such dividend, distribution, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding up is expected to become effective, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their shares of Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding up, or (z) the date on which such tender offer commenced, the date on which such tender offer is scheduled to expire unless extended, the consideration offered and the other material terms thereof (or the material terms of any amendment thereto). SECTION 16.07. Company to Reserve Common Stock. ------------------------------- The Company shall at all times reserve and keep available, free from preemptive rights, out of its authorized but unissued Common Stock, for the purpose of effecting the conversion of Securities, the full number of shares of Common Stock then issuable upon the conversion of all outstanding Securities. SECTION 16.08. Taxes on Conversions. -------------------- The Company will pay any and all taxes, other than any franchise or income taxes, that may be payable in respect of the issue or delivery of shares of Common Stock on conversion of Securities pursuant hereto. The Company shall not, however, be required to pay any tax that may be payable in respect of any transfer involved in the issue and delivery of shares of Common Stock in a name other than that of the Holder of the Security or Securities to be converted, and no such issue or delivery shall be made unless and until the person requesting such issue has paid to the Company the amount of any such tax, or has established to the satisfaction of the Company that such tax has been paid. SECTION 16.09. Covenant as to Common Stock. --------------------------- The Company covenants that all shares of Common Stock that may be issued upon conversion of Securities will upon issue be fully paid and nonassessable - 95 - and, except as provided in Section 16.08, the Company will pay all taxes, liens and charges with respect to the issue thereof. SECTION 16.10. Cancellation of Converted Securities, etc. ------------------------------------------ All Securities delivered for conversion shall be delivered to the Trustee to be canceled by or at the direction of the Trustee, which shall dispose of the same as provided in Section 3.10. SECTION 16.11. Provision in the Case of Consolidation, Merger or ------------------------------------------------- Sales of Assets. --------------- In the event of any consolidation of the Company with, or merger of the Company into, any other corporation, or in the event of any merger of another corporation into the Company (other than a merger which does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock of the Company), or in the event of any sale or transfer of all or substantially all of the assets of the Company, the corporation formed by such consolidation or resulting from such merger or which acquires such assets, as the case may be, shall execute and deliver to the Trustee a supplemental indenture providing that the Holder of each Security then outstanding shall have the right thereafter, during the period such Security shall be convertible as specified in Section 16.01, to convert such Security only into the kind and amount of securities, cash and other property receivable upon such consolidation, merger, sale or transfer by a holder of the number of shares of Common Stock of the Company into which such Security might have been converted immediately prior to such consolidation, merger, sale or transfer, assuming such holder of Common Stock of the Company failed to exercise its rights of election, if any, as to the kind or amount of securities, cash and other property receivable upon such consolidation, merger, sale or transfer (provided that if the kind or amount of securities, cash and other property receivable upon such consolidation, merger, sale or transfer is not the same for each share of Common Stock in respect of which such rights of election shall not have been exercised ("non-electing share"), then for the purpose of this Section, the kind and amount of securities, cash and other property receivable upon such consolidation, merger, sale or transfer by each non-electing share shall be deemed to be the kind and amount so receivable per share by a plurality of the non-electing shares). Such supplemental indenture shall provide for adjustments which, for events subsequent to the effective date of such supplemental indenture, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Article. The above provisions of this Section shall similarly apply to successive consolidations, mergers, sales or transfers. SECTION 16.12. Trustee's Adjustment Disclaimer. ------------------------------- The Trustee has no duty to determine when an adjustment under this Article 16 should be made, how it should be made or what it should be. The Trustee has no duty to determine whether a supplemental indenture under Section 16.11 need be entered into or whether any provisions of any supplemental indenture are correct. The Trustee shall not be accountable for and makes no representation as to the validity or value of any securities or assets issued upon conversion of Securities. The Trustee shall not be responsible for the Company's failure to comply with the Article 16. - 96 - 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. BERGEN BRUNSWIG CORPORATION By___________________________________ Attest ______________________________ CHEMICAL TRUST COMPANY OF CALIFORNIA, as Trustee By___________________________________ Attest ______________________________ - 97 - STATE OF CALIFORNIA COUNTY OF ORANGE On the _____ day of _____________, 1996 before me personally appeared ______________ to me known, who, being by me duly sworn, did depose and say that he resides at _______________________________, California and that he is ______________ of Bergen Brunswig Corporation, one of the corporations described in and which executed the foregoing instrument; and that he signed his name thereto by authority of the board of directors of Bergen Brunswig Corporation. ________________________________ Notary Public ________________________________ (Notarial Seal) - 98 - STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO On the _____ day of _____________, 1996 before me personally came _____________ to me known, who, being by me duly sworn, did depose and say that he resides at _______________________________, California and that he is ____________ of Chemical Trust Company of California, one of the parties described in and which executed the above instrument; and that he signed his name thereto by authority of the board of directors of Chemical Trust Company of California. ________________________________ Notary Public ________________________________ (Notarial Seal) - 99 - FORMS OF CERTIFICATION EXHIBIT A-1 FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE CERTIFICATE [Insert title or sufficient description of Securities to be delivered] This is to certify that, as of the date hereof, and except as set forth below, the above-captioned Securities held by you for our account (i) are owned by person(s) that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject to United States federal income taxation regardless of its source ("United States person(s)"), (ii) are owned by United States Person(s) that are (a) foreign branches of United States financial Institutions (financial institutions, as defined in United States Treasury Regulations Section 1.16512(c)(1)(v) are herein referred to as "financial institutions") purchasing for their own account or for resale, or (b) United States person(s) who acquired the Securities through foreign branches of United States financial institutions and who hold the Securities through such United States financial institutions on the date hereof (and in either case (a) or (b), each such United States financial institution hereby agrees, on its own behalf or through its agent, that you may advise Bergen Brunswig Corporation, or its agent that such financial institution will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the United States Internal Revenue Codes of 1986, as amended, and the regulations thereunder), or (iii) are owned by United States or foreign financial institution(s) for purposes of resale during the restricted period (as defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7), and, in addition, if the owner is a United States or foreign financial institution described in clause (iii) above (whether or not also described in clause (i) or (ii)), this is to further certify that such financial institution has not acquired the Securities for purposes of resale directly or indirectly to a United States person or to a person within the United States. As used herein, "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 (including the Commonwealth of Puerto Rico). A-1-1 We undertake to advise you promptly by tested telex on or prior to the date on which you intend to submit your certification relating to the above-captioned Securities held by you for our account in accordance with your Operating Procedures if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certification applies as of such date. This certificate excepts and does not relate to [U.S.$] ______________ of such interest in the above-captioned Securities in respect of which we are not able to certify and as to which we understand an exchange for an interest in a permanent Global Security or an exchange for and delivery of definitive Securities (or, if relevant, collection of any interest) cannot be made until we do so certify. We understand that this certificate may be 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 the 15th day prior to (i) the Exchange Date or (ii) the relevant Interest Payment Date occurring prior to the Exchange Date, as applicable] [Name of Person Making Certification] _______________________________ (Authorized Signatory) Name: Title: A-1-2 EXHIBIT A-2 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 OR TO OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE CERTIFICATE [Insert title or sufficient description of Securities to be delivered] This is to certify that, based solely on written certifications that we have received in writing, by tested telex or by electronic transmission from each of the persons appearing in our records as persons entitled to a portion of the principal amount set forth below (our "Member Organizations") substantially in the form attached hereto, as of the date hereof, [U.S.$]_________ principal amount of the above-captioned Securities (i) is owned by person(s) that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject to United States Federal income taxation regardless of its source ("United States person(s)"), (ii) is owned by United States person(s) that are (a) foreign branches of United States financial institutions (financial institutions, as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v) are herein referred to as "financial institutions") purchasing for their own account or for resale, or (b) United States person(s) who acquired the Securities through foreign branches of United States financial institutions and who hold the Securities through such United States financial institutions on the date hereof (and in either case (a) or (b), each such financial institution has agreed, on its own behalf or through its agent, that we may advise Bergen Brunswig Corporation or its agent that such financial institution will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is owned by United States or foreign financial institution(s) for purposes of resale during the restricted period (as defined in United States Treasury Regulations Section 1.163.5(c)(2)(i)(D)(7)), and, to the further effect, that financial institutions described in clause (iii) above (whether or not also described in clause (i) or (ii)) have certified that they have not acquired the Securities for purposes of resale directly or indirectly to a United States person or to a person within the United States. As used herein, "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 (including the Commonwealth of Puerto Rico). We further certify that (i) we are not making available herewith for exchange (or, if relevant, collection of any interest) any portion of the temporary Global Security representing the above-captioned Securities excepted in the above-referenced certificates of Member Organizations and (ii) as of the date hereof we have not received any notification from any of our Member Organizations to the effect that the statements made by such Member A-2-1 Organizations with respect to any portion of the part submitted herewith for exchange (or, if relevant, collection of any interest) are no longer true and cannot be relied upon as of the date hereof. We understand that this certification 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 the Exchange Date or the relevant Interest Payment Date occurring prior to the Exchange Date, as applicable] [Morgan Guaranty Trust Company of New York, Brussels Office,] as Operator of the Euroclear System [Cedal S.A.] By_______________________________ A-2-2 EX-4.5 3 SUBORDINATED DEBT SECURITIES BETWEEN BERGEN BRUNSWIG CORPORATION AND CHEMICAL TRUST COMPANY OF CALIFORNIA EXHIBIT 4.5 BERGEN BRUNSWIG CORPORATION TO CHEMICAL TRUST COMPANY OF CALIFORNIA, as Trustee ___________________________ Indenture Dated as of January 1, 1996 ___________________________ Subordinated Debt Securities
CROSS REFERENCE TABLE(1) TIA Indenture Section Section - ------- --------- 310 (a)(1) ............................................... 6.09 (a)(2) ............................................... 6.09 (a)(3) ............................................... N.A. (a)(4) ............................................... N.A. (a)(5) ............................................... 6.09 (b) ............................................... 6.08 (c) ............................................... N.A. 311 (a) ............................................... 6.13 (b) ............................................... 6.13 (c) ............................................... N.A. 312 (a) ............................................... 7.01, 7.02 (b) ............................................... 7.02 (c) ............................................... 7.02 313 (a) ............................................... 7.03 (b) ............................................... 7.03 (c) ............................................... 7.03 (d) ............................................... 7.03 314 (a) ............................................... 7.04, 10.06 (b) ............................................... N.A. (c)(1) ............................................... 1.02 (c)(2) ............................................... 1.02 (c)(3) ............................................... N.A. (d) ............................................... N.A. (e) ............................................... 1.02 315 (a) ............................................... 6.01 (a) (b) ............................................... 6.02, 7.03 (c) ............................................... 6.01 (b) (d) ............................................... 6.01 (c) (e) ............................................... 5.14 316 (a)(last sentence) ..................................... 1.01("outstanding") (a)(1)(A)............................................... 5.12 (a)(1)(B)............................................... 5.13 (a)(2) ............................................... N.A. (b) ............................................... 5.08 (c) ............................................... 1.04 317 (a)(1) ............................................... 5.03 (a)(2) ............................................... 5.04 (b) ............................................... 10.03 318 (a) ............................................... 1.07 N.A. means Not Applicable. - ---------------------- 1 This Cross Reference Table shall not, for any purpose, be deemed to be part of the Indenture.
- i - TABLE OF CONTENTS (1) PAGE ---- PARTIES................................................................. 1 RECITALS OF THE COMPANY................................................. 1 ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION SECTION 1.01............................................................ 1 Definitions: Act................................................................. 2 Affiliate........................................................... 2 Authenticating Agent................................................ 2 Authorized Newspaper................................................ 2 Bearer Security..................................................... 2 Board of Directors; Board........................................... 3 Board Resolution.................................................... 3 Business Day........................................................ 3 Capital Stock....................................................... 3 CEDEL; CEDEL SA..................................................... 3 Closing Price....................................................... 3 Commencement Date................................................... 3 Commission.......................................................... 3 Common Stock........................................................ 4 Company............................................................. 4 Company Request; Company Order...................................... 4 Component Currency.................................................. 4 Conversion Date..................................................... 4 Conversion Event.................................................... 4 Corporate Trust Office.............................................. 4 corporation......................................................... 4 coupon.............................................................. 4 Covenant Defeasance................................................. 4 Currency; currency.................................................. 4 Defaulted Interest.................................................. 4 Defeasance.......................................................... 4 Defeasible Series................................................... 4 Depositary.......................................................... 5 Designated Currency................................................. 5 Dollar; $........................................................... 5 Dollar Equivalent................................................... 5 ECU................................................................. 5 Election Date....................................................... 5 Euroclear........................................................... 5 European Communities................................................ 5 _____________________ [FN] 1 This table of contents shall not, for any purpose, be deemed to be part of the Indenture. - ii - European Monetary System............................................ 5 Event of Default.................................................... 5 Exchange Act........................................................ 5 Exchange Date....................................................... 5 Exchange Rate Agent................................................. 5 Exchange Rate Officer's Certificate................................. 5 Expiration Time..................................................... 6 Foreign Currency.................................................... 6 Global Security..................................................... 6 Holder.............................................................. 6 Indenture........................................................... 6 Indexed Security.................................................... 6 interest............................................................ 6 Interest Payment Date............................................... 6 Market Exchange Rate................................................ 6 Maturity............................................................ 7 non-electing share.................................................. 7 Notice of Default................................................... 7 Officers' Certificate............................................... 7 Opinion of Counsel.................................................. 7 Original Issue Discount Security.................................... 7 Outstanding......................................................... 7 Paying Agent........................................................ 9 Person.............................................................. 9 Place of Payment.................................................... 9 Predecessor Security................................................ 9 Purchased Shares.................................................... 9 Redemption Date..................................................... 9 Redemption Price.................................................... 9 Reference Date...................................................... 9 Registered Security................................................. 9 Regular Record Date................................................. 9 Remarketing Entity.................................................. 9 Repayment Date...................................................... 9 Repayment Price..................................................... 9 Responsible Officer................................................. 10 Securities.......................................................... 10 Security Register; Security Registrar............................... 10 Senior Indebtedness................................................. 10 Senior Indebtedness Default......................................... 10 Special Record Date................................................. 10 Specified Amount.................................................... 10 Stated Maturity..................................................... 10 Subsidiary.......................................................... 11 Trading Day......................................................... 11 Trigger Event....................................................... 11 Trustee............................................................. 11 Trust Indenture Act; TIA............................................ 11 United States....................................................... 11 United States Alien................................................. 11 U.S. Government Obligations......................................... 11 Valuation Date...................................................... 12 Vice President...................................................... 12 - iii - SECTION 1.02. Compliance Certificates and Opinions..................... 12 SECTION 1.03. Form of Documents Delivered to Trustee................... 13 SECTION 1.04. Acts of Holders; Record Dates............................ 13 SECTION 1.05. Notices, Etc., to Trustee and Company.................... 15 SECTION 1.06. Notice to Holders; Waiver................................ 15 SECTION 1.07. Conflict with Trust Indenture Act........................ 17 SECTION 1.08. Effect of Headings and Table of Contents................. 17 SECTION 1.09. Successors and Assigns................................... 17 SECTION 1.10. Separability Clause...................................... 17 SECTION 1.11. Benefits of Indenture.................................... 17 SECTION 1.12. Governing Law............................................ 17 SECTION 1.13. Legal Holidays........................................... 17 SECTION 1.14. Counterparts............................................. 18 ARTICLE TWO SECURITY FORMS SECTION 2.01. Forms Generally.......................................... 18 SECTION 2.02. Form of Trustee's Certificate of Authentication.......... 18 SECTION 2.03. Securities Issuable in Global Form....................... 19 ARTICLE THREE THE SECURITIES SECTION 3.01. Amount Unlimited; Issuable in Series..................... 20 SECTION 3.02. Denominations............................................ 23 SECTION 3.03. Execution, Authentication, Delivery and Dating........... 23 SECTION 3.04. Temporary Securities..................................... 26 SECTION 3.05. Registration; Registration of Transfer and Exchange...... 28 SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities......... 32 SECTION 3.07. Payment of Interest; Interest Rights Preserved; Optional Interest Reset........................................... 33 SECTION 3.08. Optional Extension of Maturity........................... 36 SECTION 3.09. Persons Deemed Owners.................................... 37 SECTION 3.10. Cancellation............................................. 37 SECTION 3.11. Computation of Interest.................................. 38 SECTION 3.12. Currency and Manner of Payments in Respect of Securities. 38 SECTION 3.13. Appointment and Resignation of Successor Exchange Rate Agent............................................... 41 SECTION 3.14. CUSIP Numbers............................................ 42 SECTION 3.15. Certification by a Person Entitled to Delivery of Bearer Security.......................................... 42 SECTION 3.16. Judgments................................................ 42 SECTION 3.17. Medium Term Securities................................... 43 ARTICLE FOUR SATISFACTION AND DISCHARGE - iv - SECTION 4.01. Satisfaction and Discharge of Indenture.................. 43 SECTION 4.02. Application of Trust Money............................... 45 ARTICLE FIVE REMEDIES SECTION 5.01. Events of Default........................................ 45 SECTION 5.02. Acceleration of Maturity; Rescission and Annulment....... 47 SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee............................................... 48 SECTION 5.04. Trustee May File Proofs of Claim......................... 49 SECTION 5.05. Trustee May Enforce Claims Without Possession of Securities or Coupons.................................... 50 SECTION 5.06. Application of Money Collected........................... 50 SECTION 5.07. Limitation on Suits...................................... 51 SECTION 5.08. Unconditional Right of Holders to Receive Principal, Premium and Interest..................................... 51 SECTION 5.09. Restoration of Rights and Remedies....................... 52 SECTION 5.10. Rights and Remedies Cumulative........................... 52 SECTION 5.11. Delay or Omission Not Waiver............................. 52 SECTION 5.12. Control by Holders....................................... 52 SECTION 5.13. Waiver of Past Defaults.................................. 53 SECTION 5.14. Undertaking for Costs.................................... 53 SECTION 5.15. Waiver of Usury, Stay or Extension Laws.................. 53 ARTICLE SIX THE TRUSTEE SECTION 6.01. Certain Duties and Responsibilities...................... 54 SECTION 6.02. Notice of Defaults....................................... 55 SECTION 6.03. Certain Rights of Trustee................................ 55 SECTION 6.04. Not Responsible for Recitals or Issuance of Securities... 57 SECTION 6.05. May Hold Securities...................................... 57 SECTION 6.06. Money Held in Trust...................................... 57 SECTION 6.07. Compensation and Reimbursement........................... 57 SECTION 6.08. Disqualification; Conflicting Interests.................. 58 SECTION 6.09. Corporate Trustee Required; Eligibility.................. 59 SECTION 6.10. Resignation and Removal; Appointment of Successor........ 60 SECTION 6.11. Acceptance of Appointment by Successor................... 61 - v - SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business.............................................. 62 SECTION 6.13. Preferential Collection of Claims Against Company........ 63 SECTION 6.14. Appointment of Authenticating Agent...................... 63 ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders............................................... 64 SECTION 7.02. Preservation of Information; Communications to Holders... 65 SECTION 7.03. Reports by Trustee....................................... 65 SECTION 7.04. Reports by Company....................................... 66 ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms..... 66 SECTION 8.02. Successor Person Substituted............................. 67 ARTICLE NINE SUPPLEMENTAL INDENTURES SECTION 9.01. Supplemental Indentures Without Consent of Holders....... 67 SECTION 9.02. Supplemental Indentures with Consent of Holders.......... 68 SECTION 9.03. Execution of Supplemental Indentures..................... 70 SECTION 9.04. Effect of Supplemental Indentures........................ 70 SECTION 9.05. Conformity with Trust Indenture Act...................... 70 SECTION 9.06. Reference in Securities to Supplemental Indentures....... 70 SECTION 9.07 Notice of Supplemental Indenture......................... 70 ARTICLE TEN COVENANTS SECTION 10.01. Payment of Principal, Premium and Interest............... 71 SECTION 10.02. Maintenance of Office or Agency.......................... 71 SECTION 10.03. Money for Securities Payments to Be Held in Trust........ 72 SECTION 10.04. Purchase of Securities by Company or Subsidiary.......... 73 SECTION 10.05. Payment of Additional Amounts............................ 73 SECTION 10.06. Statement by Officers as to Default...................... 74 SECTION 10.07. Existence................................................ 75 - vi - ARTICLE ELEVEN REDEMPTION OF SECURITIES SECTION 11.01. Applicability of Article................................. 75 SECTION 11.02. Election to Redeem; Notice to Trustee.................... 75 SECTION 11.03. Selection by Trustee of Securities to Be Redeemed........ 75 SECTION 11.04. Notice of Redemption..................................... 76 SECTION 11.05. Deposit of Redemption Price.............................. 77 SECTION 11.06. Securities Payable on Redemption Date.................... 77 SECTION 11.07. Securities Redeemed in Part.............................. 78 ARTICLE TWELVE SINKING FUNDS SECTION 12.01. Applicability of Article................................. 78 SECTION 12.02. Provisions with Respect to any Sinking Funds............. 79 ARTICLE THIRTEEN REPAYMENT AT THE OPTION OF HOLDERS SECTION 13.01. Applicability of Article................................. 80 SECTION 13.02. Repayment of Securities.................................. 80 SECTION 13.03. Exercise of Option; Notice............................... 80 SECTION 13.04. Election of Repayment by Remarketing Entities............ 81 SECTION 13.05. Securities Payable on the Repayment Date................. 81 ARTICLE FOURTEEN MEETINGS OF HOLDERS OF SECURITIES SECTION 14.01. Purposes for Which Meetings May Be Called................ 82 SECTION 14.02. Call, Notice and Place of Meetings....................... 82 SECTION 14.03. Persons Entitled to Vote at Meetings..................... 82 SECTION 14.04. Quorum; Action........................................... 83 SECTION 14.05. Determination of Voting Rights; Conduct and Adjournment of Meetings.............................................. 83 SECTION 14.06. Counting Votes and Recording Action of Meetings.......... 84 - vii - ARTICLE FIFTEEN DEFEASANCE AND COVENANT DEFEASANCE SECTION 15.01. Company's Option to Effect Defeasance or Covenant Defeasance...................................... 85 SECTION 15.02. Defeasance and Discharge................................. 85 SECTION 15.03. Covenant Defeasance...................................... 86 SECTION 15.04. Conditions to Defeasance or Covenant Defeasance.......... 86 SECTION 15.05. Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions............ 87 SECTION 15.06. Reinstatement............................................ 88 ARTICLE SIXTEEN SUBORDINATION OF SECURITIES SECTION 16.01. Securities Subordinate to Senior Indebtedness............ 89 SECTION 16.02 Payment over of Proceeds upon Dissolution, Etc........... 89 SECTION 16.03 Default on Senior Indebtedness........................... 91 SECTION 16.04 Prior Payment to Senior Indebtness Upon Acceleration of Securities............................... 91 SECTION 16.05 Payment Permitted if No Default.......................... 92 SECTION 16.06 Subrogation to Rights of Holders of Senior Indebtedness.. 92 SECTION 16.07 Provisions Solely to Define Relative Rights.............. 93 SECTION 16.08 Trustee to Effectuate Subordination...................... 93 SECTION 16.09 No Waiver of Subordination Provisions.................... 93 SECTION 16.10 Notice to Trustee........................................ 94 SECTION 16.11 Reliance on Judicial Order or Certificate of Liquidating Agent........................................ 95 SECTION 16.12 Trustee Not Fiduciary for Holders of Senior Indebtedness. 95 SECTION 16.13 Rights of Trustee as Holders of Senior Indebtedness; Preservation of Trustee's Rights......................... 95 SECTION 16.14 Article Sixteen Applicable to Paying Agents.............. 96 ARTICLE SEVENTEEN CONVERSION OF SECURITIES SECTION 17.01 Conversion Privilege and Conversion Price................ 96 SECTION 17.02 Exercise of Conversion Privilege......................... 97 SECTION 17.03 Fractions of Shares...................................... 98 SECTION 17.04 Adjustment of Conversion Price........................... 98 SECTION 17.05 Notice of Adjustments of Conversion Price................ 103 SECTION 17.06 Notice of Certain Corporate Action....................... 103 - viii - SECTION 17.07 Company to Reserve Common Stock.......................... 104 SECTION 17.08 Taxes on Conversions..................................... 104 SECTION 17.09 Covenant as to Common Stock.............................. 104 SECTION 17.10 Cancellation of Converted Securities, etc................ 105 SECTION 17.11 Provision in the Case of Consolidation, Merger or Sales of Assets................................ 105 SECTION 17.12 Trustee's Adjustment Disclaimer.......................... 105 TESTIMONIUM............................................................. 106 SIGNATURES AND SEALS.................................................... 106 ACKNOWLEDGMENTS......................................................... 107 FORMS OF CERTIFICATION.................................................. A-1-1 - ix - THIS INDENTURE, dated as of January 1, 1996, is between BERGEN BRUNSWIG CORPORATION, a New Jersey corporation having offices at 4000 Metropolitan Drive, Orange, California 92668-3510 (herein called the "Company"), and CHEMICAL TRUST COMPANY OF CALIFORNIA, as Trustee (herein called the "Trustee"). RECITALS OF THE COMPANY The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured subordinated debentures, notes or other evidences of indebtedness (herein called the "Securities"), to be issued in one or more series as in this Indenture provided. 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 agreed, for the equal and proportionate benefit of all Holders of the Securities or of one or more series thereof, as follows: ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION SECTION 1.01. Definitions. ----------- For all purposes of this Indenture and of any indenture supplemental hereto, except as otherwise expressly provided or unless the context otherwise requires: (1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular; (2) all other terms used herein which are defined in the TIA, or by Commission rule or regulation under the TIA, either directly or by reference therein, as in force at the date as of which this instrument was executed, except as provided in Section 9.05, have the meanings assigned to them therein; the terms "cash transaction" and "self-liquidating" paper, as used in TIA Section 311, shall have the meanings assigned to them in the rules of the Commission adopted under the TIA; and the following TIA terms used in this Indenture have the following meanings: "indenture securities" means the Securities; "indenture security holder" means the Holder; - 1 - "indenture to be qualified" means this Indenture; "indenture trustee" or "institutional trustee" means the Trustee; and "obligor" on the indenture securities means the Company; (3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles; and, except as otherwise herein expressly provided, the term "generally accepted accounting principles" with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted in the United States at the date of such computation; (4) the words "Article" and "Section" refer to an Article and Section, respectively, of this Indenture; and (5) the words "herein", "hereof" and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. Certain other terms are defined elsewhere herein. "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, partnerships or other ownership interests, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Authenticating Agent" means any Person authorized by the Trustee pursuant to Section 6.14 to act on behalf of the Trustee to authenticate Securities of one or more series. "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. - 2 - "Bearer Security" means any Security established pursuant to Section 2.01 which is payable to bearer including, without limitation, unless the context otherwise indicates, a Security in global bearer form. "Board of Directors" or "Board" means either the board of directors of the Company or any duly authorized committee of such board or any committee of officers of the Company acting pursuant to authority granted by such board or any committee of such 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. Where any provision of this Indenture refers to action to be taken pursuant to a Board Resolution (including the establishment of any series of the Securities and the forms and terms thereof), such action may be taken by any committee of the Board of Directors or the Company or any officer or employee of the Company authorized to take such action by a Board Resolution. "Business Day", when used with respect to any Place of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of Payment are authorized or obligated by law or executive order to close. "Capital Stock" for any corporation means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests (however designated) in stock issued by that corporation. "CEDEL" or "CEDEL S.A." means Centrale de Livraison de Valeurs Mobilieres S.A., or its successor. "Closing Price" for any day means the last reported sale price of the Common Stock regular way on such day or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices regular way on such day, in either case on the New York Exchange or, if the Common Stock is not listed or admitted to trading on such exchange, on the principal national securities exchange on which the Common Stock is listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, on the NASDAQ National Market System or, if the Common Stock is not listed or admitted to trading on any national securities exchange or quoted on such National Market System, the average of the closing bid and asked prices in the over-the- counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Company for that purpose. If the Common Stock is not listed or admitted to trading on any national securities exchange, quoted on such National Market System or listed in any list of bid and asked prices in the over-the-counter market, "Closing Price" shall mean the fair market value of the Common Stock as determined in good faith by the Board of Directors. "Commencement Date" shall have the meaning specified in Section 17.04(8). - 3 - "Commission" means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time. "Common Stock" shall mean the Class A Common Stock, par value $1.50 per share of the Company as it exists on the date of this Indenture or any other shares of Capital Stock of the Company into which such Class A Common Stock shall be reclassified or changed. "Company" means the Person named as the "Company" in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Company" shall mean such successor Person. The foregoing sentence shall likewise apply to any subsequent such successor Person. "Company Request" or "Company Order" means a written request or order signed in the name of the Company by its Chairman of the Board, its President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee. "Component Currency" has the meaning specified in Section 3.12(h). "Conversion Date" has the meaning specified in Section 3.12(d). "Conversion Event" means the cessation of use of (i) a Foreign Currency both by the government of the country which issued such currency and for the settlement of transactions by a central bank or other public institutions of or within the international banking community, (ii) the ECU both within the European Monetary System and for the settlement of transactions by public institutions of or within the European Communities or (iii) any currency unit (or composite currency) other than the ECU for the purposes for which it was established. "Corporate Trust Office" means the office of the Trustee in San Francisco, California at which at any particular time its corporate trust business shall be administered, which office at the date hereof is located at 50 California Street, San Francisco, California 94111. "corporation" means a corporation, association, company, joint stock company or business trust. "coupon" means any interest coupon appertaining to a Bearer Security. "Covenant Defeasance" has the meaning specified in Section 15.03. "Currency" or "currency" means any currency or currencies, composite currency or currency unit or currency units, including, without limitation, the ECU, issued by the government of one or more countries or by any reorganized confederation or association of such governments. "Defaulted Interest" has the meaning specified in Section 3.07. "Defeasance" has the meaning specified in Section 15.02 and "Covenant Defeasance" has the meaning specified in Section 15.03. "Defeasible Series" has the meaning specified in Section 15.01. - 4 - "Depositary" means, with respect to the Securities of any series issuable or issued in whole or in part in the form of one or more Global Securities, the Person designated as Depositary by the Company pursuant to Section 3.01 until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Depositary" shall mean or include each Person who is then a Depositary hereunder, and if at any time there is more than one such Person, "Depositary" as used with respect to the Securities of any such series shall mean the Depositary with respect to the Securities of that series. "Designated Currency" has the meaning specified in Section 3.16. "Dollar" or "$" means a dollar or other equivalent within the coin or currency of the United States as at the time of payment is legal tender for the payment of public and private debts. "Dollar Equivalent" has the meanings specified in paragraphs (f) and (g) of Section 3.12. "ECU" means the European Currency Unit as defined and revised from time to time by the Council of the European Communities. "Election Date" has the meaning specified in Section 3.12(h). "Euroclear" means Morgan Guarantee 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. "European Monetary System" means the European Monetary System established by the Resolution of December 5, 1978 of the Council of the European Communities. "Event of Default" has the meaning specified in Section 5.01. "Exchange Act" means the Securities Exchange Act of 1934, as amended from time to time, and any successor thereto, and the rules and regulations promulgated thereunder. "Exchange Date" shall have the meaning specified in Section 3.04(b). "Exchange Rate Agent" shall have the meaning specified as contemplated in Section 3.01. "Exchange Rate Officer's Certificate", means a certificate setting forth the applicable Market Exchange Rate or applicable bid quotation 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, 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. "Expiration Time" shall have the meaning specified in Section 17.04(6). - 5 - "Foreign Currency" means any Currency, including, without limitation, the ECU issued by the government of one or more countries other than the United States or by any recognized confederation or association of such governments. "Global Security" means a Security evidencing all or part of a series of Securities, authenticated and delivered to the Depositary for such series or its nominee, and registered in the name of such Depositary or nominee, in accordance with Section 3.03. "Holder" means, with respect to a Registered Security, a Person in whose name a Registered Security is registered in the Security Register and, with respect to a Bearer Security, the bearer thereof. "Indenture" means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument, and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively. The term "Indenture" shall also include the terms of particular series of Securities established as contemplated by Section 3.01. "Indexed Security" means a Security as to which all or certain interest payments and/or the principal amount payable at Maturity are determined by reference to prices, changes in prices, or differences between prices, or securities or Currencies as specified pursuant to Section 3.01 hereof. "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 Security, means the Stated Maturity of an installment of interest on such Security, and, when used with respect to a Security which provides for the payment of additional amounts pursuant to Section 10.05, includes such additional amounts. "Market Exchange Rate" means, unless otherwise specified with respect to any Securities pursuant to Section 3.01, (i) for any conversion involving a Currency unit on the one hand and Dollars or any Foreign Currency on the other, the exchange rate between the relevant Currency unit and Dollars or such Foreign Currency calculated by the method specified pursuant to Section 3.01 for the Securities of the relevant series, (ii) for any conversion of Dollars into any Foreign Currency, the noon buying rate for such Foreign Currency for cable transfers quoted in New York City as certified for customs purposes by the Federal Reserve Bank of New York and (iii) for any conversion of one Foreign Currency into Dollars or another Foreign Currency, the spot rate at noon local time in the relevant market at which, in accordance with normal banking procedures, the Dollars or Foreign Currency into which conversion is being made could be purchased with the Foreign Currency from which conversion is being made from major banks located in either New York City, London or any other principal market for Dollars or such purchased Foreign Currency, in each case as - 6 - determined by the Exchange Rate Agent. Unless otherwise specified with respect to any Securities pursuant to Section 3.01, in the event of the unavailability of any of the exchange rates provided for in the foregoing clauses (i), (ii) and (iii), the Exchange Rate Agent shall use, in its sole discretion and without liability on its part, such quotation of the Federal Reserve Bank of New York as of the most recent available date, or quotations from one or more major banks in New York City, London or other principal market for such currency or currency unit in question, or such other quotations as the Exchange Rate Agent shall deem appropriate. Unless otherwise specified by the Exchange Rate Agent, if there is more than one market for dealing in any currency or currency unit by reason of foreign exchange regulations or otherwise, the market to be used in respect of such currency or currency unit shall be that upon which a nonresident issuer of securities designated in such currency or currency unit would purchase such currency or currency unit in order to make payments in respect of such securities. "Maturity", when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether on a Repayment Date, at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise. "non-electing share" shall have the meaning specified in Section 17.11. "Notice of Default" means a written notice of the kind specified in Section 5.01(4) or 5.01(5). "Officers' Certificate" means a certificate signed by the Chairman of the Board, the President or any Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or any Assistant Secretary, of the Company, and delivered to the Trustee, which shall comply with Section 1.02 to the extent applicable. "Opinion of Counsel" means a written opinion of counsel, who may be an employee of or counsel to the Company, and who shall be acceptable to the Trustee such acceptance, which shall comply with Section 1.02 to the extent applicable. "Original Issue Discount Security" means any (i) 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 5.02 and (ii) other Security deemed an original issue discount security for United States federal income tax purposes. "Outstanding", when used with respect to Securities of a particular series, means, as of the date of determination, all such Securities theretofore authenticated and delivered under this Indenture, except: (1) such Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation; - 7 - (2) 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 in accordance with Section 4.01; 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; (3) such Securities as to which Defeasance has been effected pursuant to Section 15.02 or 15.03; and (4) such Securities which have been paid pursuant to Section 3.06 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a Person in whose hands such Securities are legal, valid and binding obligations of the Company; provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder or are present at a meeting of Holders for quorum purposes, and for the purpose of making the calculations required by TIA Section 313, (A) the principal amount of an Original Issue Discount Security that may be counted in making such determination or calculation and that shall be deemed to be Outstanding for such purpose shall be equal to the amount of principal thereof that would be (or shall have been declared to be) due and payable, at the time of such determination, upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02, (B) the principal amount of any Security denominated in a Foreign Currency that may be counted in making such determination or calculation and that shall be deemed to be Outstanding for such purpose shall be equal to the Dollar equivalent, determined as of the date such Security is originally issued by the Company as set forth in an Exchange Rate Officer's Certificate delivered to the Trustee, of the principal amount (or in the case of an Original Issue Discount Security or Indexed Security, the Dollar equivalent as of such date of original issuance of the amount determined as provided in clause (A) above or (C) below, respectively) of such Security, (C) the principal amount of any Indexed Security that may be counted in making such determination or calculation and that shall be deemed to be Outstanding for such purpose shall be equal to the principal face amount of such Indexed Security at original issuance, unless otherwise provided with respect to such Security pursuant to Section 3.01, and (D) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which the Trustee knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor. - 8 - "Paying Agent" means any Person authorized by the Company to pay the principal of (or any premium) or interest on any Securities on behalf of the Company. "Person" means any individual, corporation, partnership, limited liability company, joint venture, 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 the principal of and any premium and interest on the Securities of that series are payable as specified as contemplated by Sections 3.01 and 10.02, or if no such place shall be specified, at the offices of the Paying Agent. "Predecessor Security" of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.06 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security. "Purchased Shares" shall have the meaning specified in Section 17.04(6). "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 at which it is to be redeemed pursuant to this Indenture. "Reference Date" shall have the meaning specified in Section 17.04(4). "Registered Security", means any Security in the form of Registered Securities established pursuant to Section 2.01 which is registered in the Security Register. "Regular Record Date", for the interest payable on any Interest Payment Date on the Registered Securities of any series means the date specified for that purpose as contemplated by Section 3.01. "Remarketing Entity", when used with respect to 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 an option for repayment by the Holder, means the date fixed for such repayment. "Repayment Price", when used with respect to any Security to be repaid upon exercise of an option for repayment by the Holder, means the price at which it is to be repaid pursuant to this Indenture. - 9 - "Responsible Officer", means the President or any Vice President, Assistant Vice President or Trust Officer of the Trustee to whom any matter has been referred because of such officer's knowledge and familiarity with the particular subject. "Securities" has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture. "Security Register" and "Security Registrar" have the respective meanings specified in Section 3.05. "Senior Indebtedness" means the principal of (and premium, if any) and interest, if any, on (a) all indebtedness of the Company (including indebtedness of others guaranteed by the Company) (other than (w) the Securities, (x) indebtedness outstanding under the indenture between the Company and Chemical Trust Company of California ("Chemical") dated as of July 15, 1986, (y) the subordinated indentures between the Company and Chemical dated as of December 1, 1992 and January 1, 1996, respectively and (z) indebtedness as to which the instruments creating or evidencing the same provide that such indebtedness is not senior in right or payment to the Securities (collectively, the "Pari Passu Debt")), whether outstanding on the date of this Indenture or hereafter created, incurred or assumed, that is (i) for money borrowed or (ii) evidenced by a note or similar instrument given in connection with the acquisition of any businesses, properties or assets of any kind, except in the ordinary course of business, (b) obligations of the Company as lessee under leases required to be capitalized on the consolidated balance sheet of the Company under generally accepted accounting principles or leases of property made as part of any sale and leaseback transaction to which the Company is a party and (c) amendments, renewals, extensions, modifications and refundings of any such indebtedness or obligations; unless in any case referred to in clauses (a), (b) or (c) above, in the instrument creating or evidencing any such indebtedness or obligation or pursuant to which the same is outstanding it is provided that such indebtedness or obligation is not superior in right of payment to the Securities or to any Pari Passu Debt. "Senior Indebtedness Default" means the happening of an event of default with respect to any Senior Indebtedness, as defined therein or in the instrument under which the same is outstanding, which, if occurring prior to the stated maturity of such Senior Indebtedness, permits any holder thereof (immediately, or with notice, lapse of time or both) to accelerate the maturity thereof. "Special Record Date" for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.07. "Specified Amount" has the meaning specified in Section 3.12(h). - 10 - "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, as amended in accordance with the terms hereof. "Subsidiary" shall mean (i) a corporation, a majority of the outstanding voting stock of which is owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries, or (ii) a partnership in which the Company or a Subsidiary of the Company is at the date of determination, a general partner of such partnership, or (iii) any other Person (other than a corporation or a partnership) in which the Company, a Subsidiary of the Company or the Company and one or more Subsidiaries of the Company, directly or indirectly, at the date of determination, has (x) at least a majority ownership interest or (y) the power to elect or direct the election of a majority of the directors or other governing body of such Person. For the purposes of this definition, 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. "Trading Day" means, with respect to the Common Stock, each Monday, Tuesday, Wednesday, Thursday and Friday, other than any day on which securities are not traded on the exchange or market on which the Common Stock is traded. "Trigger Event" shall have the meaning specified in Section 17.04(7). "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 each Trustee with respect to Securities of that series. "Trust Indenture Act", or "TIA", means the Trust Indenture Act of 1939 and the rules and regulations promulgated thereunder as in force at the date as of which this instrument was executed, except as provided in Section 9.05; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act" or "TIA" means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended and the rules and regulations promulgated thereunder. "United States" means the United States of America (including the District of Columbia) and its possessions and territories and other areas subject to its jurisdiction (including the Commonwealth of Puerto Rico). "United States Alien" 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. "U.S. Government Obligations" means securities which are (i) direct obligations of the United States for the payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian with respect to any such U.S. Government Obligation or a - 11 - specific payment of any interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of any interest on or principal of the U.S. Government Obligation evidenced by such depository receipt. "Valuation Date" has the meaning specified in Section 3.12(c). "Vice President", when used with respect to the Company or the Trustee, means any elected vice president, whether or not designated by a word or words added before 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 (other than delivery of any Security to the Trustee for authentication pursuant to Section 3.03), the Company shall furnish to the Trustee such certificates and opinions as may be required under the Trust Indenture Act. Each such certificate or opinion shall be given in the form of an Officers' Certificate, if to be given by an officer of the Company, or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any other requirements set forth in this Indenture. 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, however, 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 pursuant to Section 10.06) shall include: (1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (4) a statement as to whether or not, in the opinion of each such individual, such condition or covenant has been complied with. SECTION 1.03. Form of Documents Delivered to Trustee. -------------------------------------- - 12 - 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; Record Dates. ----------------------------- (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent 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 Fourteen, 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 are received by the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 6.01) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section. The record of any meeting of Holders of Securities shall be proved in the manner provided in Section 14.06. 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 to such execution or by a certificate of a 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 - 13 - by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. 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. (b) The ownership of Registered Securities shall be proved by the Security Register. (c) The ownership, 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, banker 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 in the amount and with the serial numbers 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. 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. (d) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee, any Security Registrar, any Paying Agent, any Authenticating Agent or the Company in reliance thereon, whether or not notation of such action is made upon such Security. (e) If the Company shall solicit from the Holders of Registered Securities any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company may, at its option, in or pursuant to a Board Resolution, fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall have no obligation to do so. Notwithstanding TIA Section 316(c), if such record date is fixed by Board Resolution, such record date shall be the record date specified in or pursuant to such Board Resolution, which shall be a date not earlier than the date 30 days prior to the first solicitation of Holders generally in connection therewith and not later than the date such solicitation is completed. In the event no such record date is fixed by Board Resolution, such record date shall be the later of 10 days prior to the first solicitation of such action or the date of the most recent list of Holders furnished to the Trustee pursuant to Section 7.01. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders - 14 - of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of Outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than eleven months after the record date, and that no such authorization, agreement or consent may be amended, withdrawn or revoked once given by a Holder, unless the Company shall provide for such amendment, withdrawal or revocation in conjunction with such solicitation of authorizations, agreements or consents or unless and to the extent required by law. Without limiting the foregoing, a Holder entitled hereunder to give or 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 different part of such principal amount. 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, (1) 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 Corporate Trust Office, Attention: Corporate Trust Administration, or (2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to it at the address of its principal office specified in the first paragraph of this instrument, Attention: Treasurer, or at any other address previously furnished in writing to the Trustee by the Company. SECTION 1.06. Notice to Holders; Waiver. ------------------------- Where this Indenture provides for notice of any event to Holders of Registered Securities by the Company or the Trustee, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each such Holder affected by such event, at his address as it appears in the Security Register, not later than the latest date, if any, and not earlier than the earliest date, if any, prescribed for the giving of such notice. 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 shall affect the sufficiency of such notice with respect to other Holders of Registered Securities or the sufficiency of any notice to Holders of Bearer Securities given as provided herein. Any notice mailed to a Holder in the manner herein - 15 - prescribed shall be conclusively deemed to have been received by such Holder, whether or not such Holder actually receives such notice. If by reason of the suspension of or irregularities in regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification to Holders of Registered Securities as shall be made with the approval of the Trustee shall constitute a sufficient notification to such Holders for every purpose hereunder. Except as otherwise expressly provided herein or otherwise specified with respect to any Securities pursuant to Section 3.01, where this Indenture provides for notice to Holders of Bearer Securities of any event, such notice shall be sufficiently given if published in an Authorized Newspaper in the City of New York and, if a Responsible Officer has actual knowledge that the Securities of such series are then listed on the International Stock Exchange of the United Kingdom and the Republic of Ireland and such stock exchange shall so require, in London, and, if a Responsible Officer has actual knowledge that the Securities of such series are then listed on the Luxembourg Stock Exchange and such stock exchange shall so require, in Luxembourg and, if a Responsible Officer has actual knowledge that the Securities of such series are then listed on any other stock exchange outside the United States and such stock exchange shall so require, in any other required city outside the United States or, if not practicable, in Europe on a Business Day at least twice, the first such publication to be not later than the latest date and not earlier than the earliest date prescribed for the giving of such notice, and in such other city or cities as may be specified in such Securities on a Business Day, such publication to be not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. Any such notice shall be deemed to have been given on the date of such publication or, if published more than once, on the date of the first such publication. If 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 such notice with respect to other Holders of Bearer Securities or the sufficiency of any notice to Holders of Registered Securities given as provided herein. 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. Where this Indenture or any Security provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. SECTION 1.07. Conflict with Trust Indenture Act. --------------------------------- - 16 - If any provision hereof limits, qualifies or conflicts with a provision of the TIA that is required under such Act to be a part of and govern this Indenture, the TIA provision shall control. If any provision of this Indenture modifies or excludes any provision of the TIA that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be. SECTION 1.08. Effect of Headings and Table of Contents. ---------------------------------------- The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. SECTION 1.09. Successors and Assigns. ---------------------- All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not. SECTION 1.10. Separability Clause. ------------------- In case any provision in this Indenture or in the Securities or coupons shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. SECTION 1.11. Benefits of Indenture. --------------------- Nothing in this Indenture or in the Securities or coupons, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder, any Paying Agent, Security Registrar and Authenticating Agent, the holders of Senior Indebtedness and the Holders of the Securities, any benefit or any legal or equitable right, remedy or claim under this Indenture. SECTION 1.12. Governing Law. ------------- This Indenture and the Securities and coupons shall be governed by and construed in accordance with the law of the State of New York, but without regard to principles of conflicts of law. SECTION 1.13. Legal Holidays. -------------- In any case where any Interest Payment Date, Redemption Date, Repayment Date, Stated Maturity or Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities or coupons (other than a provision of the Securities of any series which specifically states that such provision shall apply in lieu of this Section)) payment of interest or principal (and premium, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, Repayment Date, Stated Maturity or Maturity, provided that no interest shall accrue for - 17 - the period from and after such Interest Payment Date, Redemption Date, Repayment Date, Stated Maturity or Maturity, as the case may be. SECTION 1.14. Counterparts. ------------ This Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Indenture. ARTICLE TWO SECURITY FORMS SECTION 2.01. Forms Generally. --------------- The Registered Securities, if any, and the Bearer Securities and related coupons, if any, of each series shall be in substantially such form (including temporary or permanent global form) as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or market 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. If the form of Securities of any series or coupons is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 3.03 for the authentication and delivery of such Securities or coupons. Unless otherwise specified as contemplated by Section 3.01, Bearer Securities other than Securities in temporary or permanent global form shall have coupons attached. The definitive Securities and coupons, if any, shall be printed, lithographed or engraved or produced by any combination of these methods on steel engraved borders or may be produced in any other manner permitted by the rules of any securities exchange on which the Securities may be listed, 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 Trustee's Certificate of Authentication. ----------------------------------------------- The Trustee's certificate of authentication on each Security shall be in substantially the following form: - 18 - This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture. ____________________________________ , as Trustee By:_________________________________ (Authorized Officer) SECTION 2.03. Securities Issuable in Global Form. ---------------------------------- If Securities of or within a series are issuable in global form, as specified as contemplated by Section 3.01, then, notwithstanding clause (9) of Section 3.01 and the provisions of Section 3.02, any 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 of such series from time to time endorsed thereon and that the aggregate amount of Outstanding Securities of such series represented thereby may from time to time be increased or decreased to reflect exchanges. 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 by the Trustee 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 3.04. Subject to the provisions of Section 3.03 and, if applicable, Section 3.04, the Trustee shall deliver and redeliver any Security in permanent global form in the manner and upon instructions given by the Person or Persons specified therein or in the applicable Company Order. If a Company Order pursuant to Section 3.03 or 3.04 has been, or simultaneously is, delivered, any instructions by the Company with respect to endorsement, delivery or redelivery of a Security in global form shall be in writing but need not comply with Section 1.02 and need not be accompanied by an Opinion of Counsel. The provisions of the last sentence of Section 3.03(g) shall apply to any Security represented by a Security in global form if such Security was never issued and sold by the Company and the Company delivers to the Trustee the Security in global form together with written instructions (which need not comply with Section 1.02 and need not be accompanied by an Opinion of Counsel) with regard to the reduction in the principal amount of Securities represented thereby, together with the written statement contemplated by the last sentence of Section 3.03(g). Notwithstanding the provisions of Section 3.07, unless otherwise specified as contemplated by Section 3.01, payment of principal of (and premium, if any) and interest, if any, on any permanent Global Security shall be made to the Person or Persons specified therein. Notwithstanding the provisions of Section 3.09 and except as provided in the preceding paragraph, the Company, the Trustee and any agent of the Company and the Trustee shall treat as the Holder of such principal amount of Outstanding Securities represented by a permanent Global Security (i) in the case of a permanent Global Security in registered form, the Holder of such permanent Global Security in registered form, or (ii) in the case of a permanent Global - 19 - Security in bearer form, Euroclear, CEDEL or such other Person as may be known to the Trustee to be the bearer thereof. ARTICLE THREE THE SECURITIES SECTION 3.01. Amount Unlimited; Issuable in Series. ------------------------------------ The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited. The Securities shall rank equally and pari passu and may be issued in one or more series. The Securities shall not be superior in right of payment to any securities issued pursuant to the subordinated indenture between the Company and Chemical dated as of December 1, 1992 (the "1992 Subordinated Indenture") or to any indebtedness defined in the 1992 Subordinated Indenture as "pari passu debt". There shall be established in or pursuant to a Board Resolution, and, subject to Section 3.03, set forth, 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, any or all of the following, as applicable (each of which (except for the matters in clauses (1) and (2)), if so provided, may be determined by the Company with respect to unissued Securities of the series when issued from time to time): (1) the title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any other series) and a statement of the nature and extent of the subordination to which the Securities are subject; (2) any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 3.04, 3.05, 3.06, 9.06, 11.07 or 13.03 and except for any Securities which, pursuant to Section 3.03, are deemed never to have been authenticated and delivered hereunder); (3) the date or dates, or the method by which such date or dates will be determined or extended, on which the principal of the Securities (and premium, if any), of the series is payable; (4) the rate or rates at which the Securities of the series shall bear interest, or the method or methods by which such rate or rates shall be determined, if any, the date or dates from which such interest shall accrue, or the method by which such date or dates will be determined or extended, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date for any interest payable on any Registered Security on any Interest Payment Date, the circumstances, if any, in which the Company may defer interest payments and the manner of computing interest if other than as specified in Section 3.11; - 20 - (5) the place or places where, subject to the provisions of Section 10.02, the principal of (and premium, if any) and interest, if any, on Securities of the series shall be payable, any Registered Securities of the series may be surrendered for registration of transfer, Securities of the series may be surrendered for exchange and notices and demands to or upon the Company in respect of the Securities of the series and this Indenture may be served and where notices to Holders pursuant to Section 1.06 will be published; (6) the period or periods within which or the date or dates on which, the price or prices at which, and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company; (7) the obligation, if any, of the Company to redeem, repay 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 other terms and conditions upon which Securities of the series shall be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation; (8) 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, the terms upon which Bearer Securities of the series may be exchanged for Registered Securities of the series (and vice versa) if other than as provided in Sections 3.04 and 3.05, and, in the case of Bearer Securities (or any temporary Global Security representing the same), 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; (9) whether the Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities and, in such case, the Depositary for such Global Security or Securities, whether such global form shall be permanent or temporary and, if so, whether beneficial owners of interests in any such permanent Global Security may exchange such interests for Securities of such series in certificated form and of like tenor of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in this Article Three, and, if applicable, the Exchange Date; (10) whether, and under what conditions, additional amounts will be payable to Holders of Securities of the series pursuant to Section 10.05; (11) the denominations in which any Registered Securities of the series shall be issuable, if other than denominations of $1,000 and any integral multiple thereof, and the denominations in which any Bearer Securities of such series shall be issuable, if other than denominations of $5,000 and any integral multiple thereof; - 21 - (12) if other than Dollars, the Currency or Currencies of denomination of the Securities of any series, which may be in any Foreign Currency or any composite Currency or index, 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; (13) whether either, both or neither of Section 15.02 or Section 15.03 shall apply to the Securities of the series; (14) if other than Dollars, the Currency, Currencies or currency units in which payment of the principal of (and premium, if any) and interest, if any, on any Securities of the series shall be payable and the Currency or Currencies, if any, in which payment of the principal of (and premium, if any) or the interest, if any, 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 time and manner of determining the exchange rate between Currency or Currencies in which such Securities are denominated or stated to be paid and the Currency or Currencies in which such Securities are to be paid, in each case in accordance with, in addition to or in lieu of Section 3.12; (15) if the amount of payments of principal of (or premium, if any) or interest, if any, on any Securities of the series may be determined with reference to an index, the manner in which such amounts shall be determined; (16) the Person to whom any interest on any Registered Security of the series shall be payable, if other than the Person in whose name such Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, the manner in which, or the Person to whom, any interest on any Bearer Security of the series shall be payable, if other than upon presentation and surrender of the coupons appertaining thereto as they severally mature, and the extent to which, or the manner in which, any interest payable on a temporary Global Security on an Interest Payment Date will be paid if other than in the manner provided in Section 3.04; (17) the designation of the initial Exchange Rate Agent, if any; (18) if the Securities of the series are to be convertible into or exchangeable for any securities of any Person (including the Company), the terms and conditions upon which such Securities will be so convertible or exchangeable; (19) 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 5.02; (20) if other than the Trustee, the identity of the Security Registrar and/or Paying Agent; and - 22 - (21) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by Section 9.01(5)). Except as set forth below, all Securities of any one series and the coupons appertaining to Bearer Securities of such series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to such Board Resolution and (subject to Section 3.03) set forth, or determined in the manner provided, in such Officers' Certificate or in any indenture supplemental 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, if any, may be determined, with different dates on which such interest may be payable and with different Redemption or Repayment Dates and may be denominated in different Currencies or payable in different Currencies. If any of the terms of the Securities of any series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers' Certificate setting forth the terms of the series. SECTION 3.02. Denominations. ------------- Securities of each series shall be issuable in such form and denominations as shall be specified in the form of Security for such series approved or established pursuant to Section 2.01 or in the Officers' Certificate delivered pursuant to Section 3.01. In the absence of any specification with respect to the Securities of any series, the Registered Securities of such series, if any (other than Registered Securities in global form, which may be in any denomination), shall be issuable in denominations of $1,000 and any integral multiples thereof and the Bearer Securities of such series, if any (other than Bearer Securities in global form, which may be in any denomination), shall be issuable in denominations of $5,000 and any integral multiple thereof. SECTION 3.03. Execution, Authentication, Delivery and Dating. ---------------------------------------------- (a) The Securities shall be executed on behalf of the Company by its Chairman of the Board, its President, its Treasurer or one of its Vice Presidents, under its corporate seal reproduced thereon, and shall be attested by its Secretary or one of its Assistant Secretaries. The signature of any of these officers on the Securities may be manual or facsimile. Coupons shall bear the facsimile signature of an authorized officer of the Company. Securities or 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 coupons or did not hold such offices at the date of such Securities or coupons. - 23 - (b) At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series, executed by the Company, to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and, except as otherwise provided in this Article Three, the Trustee in accordance with the Company Order shall authenticate and deliver such Securities; 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, unless otherwise specified with respect to any series of Securities pursuant to Section 3.01, a Bearer Security may be delivered in connection with its original issuance only if the Person entitled to receive such Bearer Security shall have furnished a certificate in the form set forth in Exhibit A-1 to this Indenture or such other certificate as may be specified with respect to any series of Securities pursuant to Section 3.01, dated no earlier than 15 days prior to the earlier of the date on which such Bearer Security is delivered and the date on which any temporary Security first becomes exchangeable for such Bearer Security in accordance with the terms of such temporary Security and this Indenture. If any Security shall be represented by a permanent Global Bearer Security, then, for purposes of this Section 3.03 and Section 3.04, the notation of a beneficial owner's interest therein upon original issuance of such Security or upon exchange of a portion of a temporary Global Security shall be deemed to be delivery in connection with its original issuance of such beneficial owner's interest in such permanent Global Security. 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. If all the Securities of any series are not to be issued at one time and if the Board Resolution or supplemental indenture establishing such series shall so permit, such Company Order may set forth procedures acceptable to the Trustee for the issuance of such Securities and determining the terms of particular Securities of such series, such as interest rate, maturity date, date of issuance and date from which interest shall accrue. If the form or terms of the Securities of the series have been established in or pursuant to one or more Board Resolutions as permitted by Sections 2.01 and 3.01, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel stating, (i) if the form of such Securities and coupons, if any, has been established by or pursuant to a Board Resolution as permitted by Section 2.01, that such form has been established in conformity with the provisions of this Indenture; (ii) if the terms of such Securities and coupons, if any, have been established by or pursuant to a Board Resolution as permitted by Section 3.01, that such terms have been established in conformity with the provisions of this Indenture; and (iii) that such Securities and coupons, if any, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles and except further as enforcement thereof may be limited by (1) requirements that a claim with respect to any Securities denominated - 24 - other than in Dollars (or a Foreign Currency or Currency unit judgment in respect of such claim) be converted into Dollars at a rate of exchange prevailing on a date determined pursuant to applicable law or (2) governmental authority to limit, delay or prohibit the making of payments in Foreign Currencies or Currency units or payments outside the United States. (c) 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, then the Company shall execute and the Trustee shall, in accordance with this Section 3.03, Section 3.04, if and to the extent applicable, and the Company Order 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 principal amount of the Outstanding Securities of such series to be represented by one or more Global Securities, (ii) shall be registered 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 a customer or pursuant to such Depositary's instructions. (d) If such form or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee's own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee. (e) Notwithstanding the provisions of Section 3.01 and 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 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. (f) Each Registered Security shall be dated the date of its authentication. Each Bearer Security shall be dated the date contemplated by Section 3.01. (g) No Security or attached coupon shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless executed and issued by the Company and 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 and is entitled to the benefits of this Indenture. 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 shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 3.10, 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. - 25 - (h) To the extent required by law, each Depositary designated pursuant to Section 3.01 for a Global Security 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. (i) The Securities may contain such notations, legends or endorsements as may be required by law, stock exchange rule or usage. SECTION 3.04. Temporary Securities. -------------------- (a) Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued, 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 conclusively evidenced by their execution of such Securities. In the case of Securities of any series, such temporary Securities may be in global form. Except in the case of temporary Securities in global form (which shall be exchanged in accordance with Section 3.04(b) or as otherwise provided in or pursuant to a Board Resolution), or as otherwise provided in or pursuant to a Board Resolution, if temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, 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 by any non-matured coupons appertaining thereto), the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of the same series of authorized denominations; provided, however, that unless otherwise contemplated or specified with respect to any series of Securities pursuant to Section 3.01, no definitive Bearer Security shall be delivered in exchange for a temporary Registered Security; and provided further that a Bearer Security shall be delivered in exchange for a Bearer Security only in compliance with the applicable conditions set forth in Sections 3.03, 3.04 and 3.05. 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. (b) Unless otherwise provided in or pursuant to a Board Resolution, this Section 3.04(b) shall govern the exchange of temporary Securities issued in global form. If temporary Securities of any series are issued in global form, any such temporary Global Security shall, unless otherwise provided therein, be delivered to the London office of a Depositary, for the benefit of Euroclear and CEDEL, for credit to the respective accounts of the beneficial owners of such Securities (or to such other accounts as they may direct). - 26 - 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 (the "Exchange Date"), the Company shall deliver to the Trustee definitive Securities, in aggregate principal amount equal to the principal amount of such temporary Global Security, executed by the Company. On or after the Exchange Date, such temporary Global Security shall be surrendered by the Depositary to the Trustee, 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 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. The definitive Securities to be delivered in exchange for any such temporary Global Security shall be in bearer form, registered form, permanent global bearer form or permanent global registered form, or any combination thereof, as specified as contemplated by Section 3.01, and, if any combination thereof is so specified, as requested by the beneficial owner thereof; provided, however, that, unless otherwise specified in such temporary Global Security, upon such presentation by the Depositary, such temporary Global Security is accompanied by a certificate dated the 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 Exchange Date or a subsequent date and signed by CEDEL as to the portion of such temporary Global Security held for its account then to be exchanged, each in the form, set forth in Exhibit A-2 to this Indenture or in such other form as may be established pursuant to Section 3.01; and provided further that definitive Bearer Securities shall be delivered in exchange for a portion of a temporary Global Security only in compliance with the requirements of Section 3.03, 3.04 and 3.05, as applicable. Unless otherwise specified in such temporary Global Security, the interest of a beneficial owner of Securities of a series in a temporary Global Security shall be exchanged for definitive Securities of the same series and of like tenor following the Exchange Date when the account holder instructs Euroclear, CEDEL or another Person, as the case may be, to request such exchange on his behalf and delivers to Euroclear, CEDEL or such other Person, as the case may be, a certificate in the form set forth in Exhibit A-1 to this Indenture (or in such other form as may be established pursuant to Section 3.01), dated no earlier than 15 days prior to the Exchange Date, copies of which certificate shall be available from the officers of Euroclear and CEDEL, 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 unless such Person takes delivery of such definitive Securities in person at the offices of Euroclear or CEDEL. 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. Until exchanged in full as hereinabove provided, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of the same series and of like tenor authenticated and delivered hereunder, except that, unless otherwise specified as contemplated by Section 3.01, any interest payable on a temporary Global Security on an Interest Payment Date for Securities of such series occurring prior to the applicable Exchange Date shall be payable to Euroclear and CEDEL on - 27 - such Interest Payment Date upon delivery by Euroclear and CEDEL to the Trustee of a certificate or certificates in the form set forth in Exhibit A-2 to this Indenture (or in such other forms as may be established pursuant to Section 3.01), for credit without further interest on or after such Interest Payment Date to the respective accounts of 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, as the case may be, a certificate dated no earlier than 15 days prior to the Interest Payment Date occurring prior to such Exchange Date in the form set forth as Exhibit A-1 to this Indenture (or in such other forms as may be established pursuant to Section 3.01). Notwithstanding anything to the contrary herein contained, the certifications made pursuant to this paragraph shall satisfy the certification requirements of the preceding two paragraphs of this Section 3.04(b) and of Section 3.03(b) of this Indenture and the interests of the Persons who are the beneficial owners of the temporary Global Security with respect to which such certification was made will be exchanged for definitive Securities of the same series and of like tenor on the Exchange Date or the date of certification if such date occurs after the Exchange Date, without further act or deed by such beneficial owners. Except as otherwise provided in this paragraph, no payments of principal (or premium, if any) or interest, if any, owing with respect to a beneficial interest in a temporary Global Security will be made unless and until such interest in such temporary Global Security shall have been exchanged for an interest in a definitive Security. Any interest so received by Euroclear and CEDEL and not paid as herein provided shall be returned to the Trustee prior to the expiration of two years after such Interest Payment Date in order to be repaid to the Company. SECTION 3.05. Registration; Registration of Transfer and Exchange. --------------------------------------------------- The Company shall cause to be kept at one of the offices or agencies to be maintained by the Company in accordance with the provisions of this Section 3.05 and Section 10.02, with respect to the Securities of each series which are Registered Securities, a register (herein 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 of transfers of Registered Securities. Pursuant to Section 3.01, the Company shall appoint, with respect to Securities of each series which are Registered Securities, a "Security Registrar" for the purpose of registering such Securities and transfers and exchanges of such Securities as herein provided. The Trustee, at its Corporate Trust office, is initially appointed "Security Registrar" for such Registered Securities. Upon surrender for registration of transfer of any Registered Security of any series at the office or agency of the Company maintained for such purpose, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Registered Securities of the same series of any authorized denomination or denominations, of like tenor and terms and aggregate principal amount, all as requested by the transferor. At the option of the Holder, Registered Securities of any series may be exchanged for other Registered Securities of the same series of any authorized denomination or denominations, of like tenor and terms and aggregate principal amount, upon surrender of the Registered Securities to be exchanged at such office or agency. Unless otherwise specified with respect to any series of - 28 - Securities as contemplated by Section 3.01, Bearer Securities may not be issued in exchange for Registered Securities. At the option of the Holder, Bearer Securities of any series may be issued in exchange for Bearer Securities (except as otherwise specified as contemplated by Section 3.01 with respect to a Bearer Security in global form) of the same series, of any authorized denominations and of like tenor and terms and aggregate principal amount, 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 and the Trustee 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; provided, however, that, except as otherwise provided in Section 10.02, interest represented by coupons shall be payable only upon presentation and surrender of those coupons at an office or agency located outside the United States. Notwithstanding the foregoing, in case a Bearer Security of any series is surrendered at any such office or agency in a permitted exchange for a Registered Security of the same series and like tenor and terms after the close of business at such office or agency of (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 of payment, as the case may be, and interest or Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date for payment as the case may be, in respect of the Registered Security issued in exchange for such Bearer Security, but will be payable only to the Holder of such coupon when due in accordance with the provisions of this Indenture. 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(h), 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(9) 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 in definitive form in an - 29 - 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 in definitive form and 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 and such Depositary. Thereupon, the Company shall execute, and the Trustee shall authenticate and deliver, without service charge, (a) to each Person specified by such Depositary in writing a new Security or Securities of the same series, of like tenor and terms and of any authorized denominations 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 a 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 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, as shall be specified by the beneficial owner thereof, 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 unless the Company or its agent shall have received from the person entitled to receive the definitive Bearer Security a certificate substantially in the form set forth in Exhibit A-1 and, if applicable, A-2 hereto; and provided further that delivery of a Bearer Security shall occur only outside the United States; and provided further that no definitive Bearer Security will be issued if the Company knows or has reason to know that any such certificate is false. Upon the exchange of a Global Security for Securities in definitive form, such Global Security shall be canceled by the Trustee. Registered Securities issued in exchange for a Global Security pursuant to this Section shall be registered in such names and in such authorized denominations as the Depositary for such Global Security, pursuant to instructions from its direct or indirect - 30 - 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. The Trustee shall deliver Bearer Securities issued in exchange for a Global Security pursuant to this Section to the persons, 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 unless the Company or its agent shall have received from the person entitled to receive the definitive Bearer Security a certificate substantially in the form set forth in Exhibit A-1 and, if applicable, A-2 hereto; and provided further that delivery of a Bearer Security shall occur only outside the United States; and provided further that no definitive Bearer Security will be issued if the Company has reason to know that any such certificate is false. 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 Registered Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company, the Security Registrar or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing. No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer, registration of transfer or exchange of Securities, other than exchanges of Securities expressly provided in this Indenture to be made at the Company's own expense or without expense or without charge to the Holders. The Company shall not be required (i) to issue, register the transfer of or exchange Securities of any particular series to be redeemed for a period of fifteen days preceding the first publication of the relevant notice of redemption or, if Registered Securities are outstanding and there is no publication, the mailing of the relevant notice of redemption of Securities of such series selected for redemption under Section 11.03 and ending at the close of business on the day of such mailing, or (ii) to register the transfer of or exchange any Registered Security so selected for redemption in whole or in part, except the unredeemed portion of such Registered Security being redeemed in part, or (iii) to exchange any Bearer Security so selected for redemption except that such a Bearer Security may be exchanged for a Registered Security of like tenor and terms of that series, provided that such Registered Security shall be simultaneously surrendered 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; neither 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 exchange the Company would suffer adverse consequences under the United States Federal income tax laws and regulations then in effect and the Company has - 31 - delivered to the Trustee a Company Order directing the Trustee not to make such exchange thereafter 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 a Paying Agent outside the United States or, in the case of a Registered Security, to the Trustee or (ii) the Company and the Trustee receive evidence to their satisfaction of the loss, destruction or theft of any Security or coupon together with, in proper cases, such security or indemnity as may be required by the Company or the Trustee to save each of them or any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor (together with all coupons not destroyed, lost or stolen) a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding with coupons corresponding to any coupons appertaining to the surrendered Security; provided that any such Bearer Security will be delivered only in compliance with Section 3.03, 3.04 and 3.05, as applicable. 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, with coupons corresponding to the coupons, if any, appertaining to such mutilated, destroyed, lost or stolen Security or to the Security to which such mutilated, destroyed, lost or stolen coupon appertains, pay such Security or coupon; provided, however, that payment of principal of (and premium, if any) and interest, if any, on Bearer Securities shall, except as otherwise provided in Section 10.02, be payable only at an office or agency located outside the United States and, unless otherwise specified as contemplated by Section 3.01, any interest on Bearer Securities shall be payable only upon presentation and surrender of the coupons appertaining thereto. Upon the issuance of any new Security or coupon 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 to which a destroyed, lost or stolen coupon appertains, 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 that 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. - 32 - SECTION 3.07. Payment of Interest; Interest Rights Preserved; ----------------------------------------------- Optional Interest Reset. ----------------------- (a) Except as otherwise specified with respect to a series of Securities in accordance with the provisions of Section 3.01, interest, if any, on any Registered Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest at the office or agency of the Company maintained for such purpose pursuant to Section 10.02; provided, however, that each installment of interest, if any, on any Registered Security may at the Company's option be paid by (i) mailing a check for such interest, payable to or upon the written order of the Person entitled thereto pursuant to Section 3.09, to the address of such Person as it appears on the Security Register or (ii) transfer to an account maintained by the payee inside the United States. Unless otherwise provided as contemplated by Section 3.01 with respect to the Securities of any series, payment of interest, if any, may be made, in the case of a Bearer Security, at the Holder's option by (i) check in the Currency designated for such payment pursuant to the terms of the Bearer Security presented or mailed to an address outside the United States or (ii) transfer to an account in such Currency maintained by the payee with a bank located outside the United States. Unless otherwise provided as contemplated by Section 3.01, every permanent Global Security will provide that interest, if any, payable on any Interest Payment Date will be paid to each of Euroclear and CEDEL with respect to that portion of such permanent Global Security held for its account by the Depositary, for the purpose of permitting each of Euroclear and CEDEL to credit the interest, if any, received by it in respect of such permanent Global Security to the accounts of the beneficial owners thereof. 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 in a Place of Payment for such series) 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. Except as otherwise specified with respect to a series of Securities in accordance with the provisions of Section 3.01, any interest on any Registered Security of any series that 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 registered Holder thereof on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (1) or (2) below: - 33 - (1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Registered Security of such series and the date of the proposed payment (which shall not be less than 30 days after such notice is received by the Trustee), and at the same time the Company shall deposit with the Trustee an amount of money in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 3.01 for the Securities of such series and except, if applicable, as provided in Sections 3.12(b), 3.12(d) and 3.12(e)) 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 on or 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 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of Registered Securities of such series 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 the Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2). 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 for payment of Defaulted Interest, such Bearer Security shall be surrendered without the coupon relating to such proposed date of payment and Defaulted Interest will not be payable on such proposed date of 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. (2) The Company may make payment of any Defaulted Interest on the Registered Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee. - 34 - (b) The provisions of this Section 3.07(b) may be made applicable to any series of Securities pursuant to Section 3.01 (with such modifications, additions or substitutions as may be specified pursuant to such Section 3.01). The interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable) on any Security of such series may be reset by the Company on the date or dates specified on the face of such Security (each an "Optional Reset Date"). The Company may exercise such option with respect to such Security by notifying the Trustee of such exercise at least 50 but not more than 75 days prior to an Optional Reset Date for such Security. Not later than 40 days prior to each Optional Reset Date, the Trustee shall transmit, in the manner provided for in Section 1.06, to the Holder of any such Security a notice (the "Reset Notice") indicating whether the Company has elected to reset the interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable), and if so (i) such new interest rate (or such new spread or spread multiplier, if applicable) and (ii) the provisions, if any, for redemption during the period from such Optional Reset Date to the next Optional Reset Date or, if there is no such next Optional Reset Date, to the Stated Maturity of such Security (each such period a "Subsequent Interest Period"), including the date or dates on which or the period or periods during which and the price or prices at which such redemption may occur during the Subsequent Interest Period. Notwithstanding the foregoing, not later than 20 days prior to an Optional Reset Date, the Company may, at its option, revoke the interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable) provided for in the Reset Notice and establish an interest rate (or a spread or spread multiplier used to calculate such interest rate, if applicable) that is higher than the interest rate (or the spread or spread multiplier, if applicable) provided for in the Reset Notice, for the Subsequent Interest Period by causing the Trustee to transmit, in the manner provided for in Section 1.06, notice of such higher interest rate (or such higher spread or spread multiplier, if applicable) to the Holder of any such Security. Such notice shall be irrevocable. All Securities with respect to which the interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable) is reset on an Optional Reset Date, and with respect to which the Holders of such Securities have not tendered such Securities for repayment (or have validly revoked any such tender) pursuant to the next succeeding paragraph, will bear such higher interest rate (or such higher spread or spread multiplier, if applicable). The Holder of any such Security will have the option to elect repayment by the Company of the principal of such Security on each Optional Reset Date at a price equal to the principal amount thereof plus interest accrued to such Optional Reset Date. In order to obtain repayment on an Optional Reset Date, the Holder must follow the procedures set forth in Article Thirteen for repayment at the option of Holders except that the period for delivery or notification to the Trustee shall be at least 25 but not more than 35 days prior to such Optional Reset Date and except that, if the Holder has tendered any Security for repayment pursuant to the Reset Notice, the Holder may, by written notice to the Trustee, revoke such tender or repayment until the close of business on the tenth day before such Optional Reset Date. Subject to the foregoing provisions of this Section 3.07 and Section 3.05, 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. - 35 - In the case of any Security that is converted after any Regular Record Date and on or prior to the next succeeding Interest Payment Date (other than any Security whose Maturity is prior to such Interest Payment Date), interest shall be payable on such Interest Payment Date notwithstanding such conversion, and such interest (whether or not punctually paid or duly provided for) shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on such Regular Record Date. Except as otherwise expressly provided in the immediately preceding sentence, in the case of any Security that is converted, interest after the date of conversion of such Security shall not be payable. SECTION 3.08. Optional Extension of Maturity. ------------------------------ The provisions of this Section 3.08 may be made applicable to any series of Securities pursuant to Section 3.01 (with such modifications, additions or substitutions as may be specified pursuant to such Section 3.01). The Stated Maturity of any Security of such series may be extended at the option of the Company for the period or periods specified on the face of such Security (each an "Extension Period") up to but not beyond the date (the "Final Maturity") set forth on the face of such Security. The Company may exercise such option with respect to any Security by notifying the Trustee of such exercise at least 50 but not more than 75 days prior to the Stated Maturity of such Security in effect prior to the exercise of such option (the "Original Stated Maturity"). If the Company exercises such option, the Trustee shall transmit, in the manner provided for in Section 1.06, to the Holder of any such Security not later than 40 days prior to the Original Stated Maturity a notice (the "Extension Notice") indicating (i) the election of the Company to extend the Stated Maturity, (ii) the new Stated Maturity, (iii) the interest rate, if any, applicable to the Extension Period and (iv) the provisions, if any, for redemption during such Extension Period. Upon the Trustee's transmittal of the Extension Notice, the Stated Maturity of such Security shall be extended automatically and, except as modified by the Extension Notice and as described in the next paragraph, such Security will have the same terms as prior to the transmittal of such Extension Notice. Notwithstanding the foregoing, not later than 20 days before the Original Stated Maturity of such Security, the Company may, at its option, revoke the interest rate provided for in the Extension Notice and establish a higher interest rate for the Extension Period by causing the Trustee to transmit, in the manner provided for in Section 1.06, notice of such higher interest rate to the Holder of any such Security. Such notice shall be irrevocable. All Securities with respect to which the Stated Maturity is extended will bear such higher interest rate. If the Company extends the Stated Maturity of any Security, the Holder will have the option to elect repayment of such Security by the Company on the Original Stated Maturity at a price equal to the principal amount thereof, plus any interest accrued to such date. In order to obtain repayment on the Original Stated Maturity once the Company has extended the Stated Maturity thereof, the Holder must follow the procedures set forth in Article Thirteen for repayment at the option of Holders, except that the period for delivery or notification to the Trustee shall be at least 25 but not more than 35 days prior to the Original Stated Maturity and except that, if the Holder has tendered any Security for repayment pursuant to an Extension Notice, the Holder may by written notice to - 36 - the Trustee revoke such tender for repayment until the close of business on the tenth day before the Original Stated Maturity. SECTION 3.09. Persons Deemed Owners. --------------------- Prior to due presentment of a Registered Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Registered Security is registered as the owner of such Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to Section 3.05 and 3.07) any interest on such Registered Security and for all other purposes whatsoever, whether or not such Registered Security is overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary. Title to any Bearer Security and any coupons appertaining thereto shall pass by delivery. 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 or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests. Notwithstanding the foregoing, with respect to any Global Security, nothing herein shall prevent the Company, the Trustee, or any agent of the Company or the Trustee, from giving effect to any written certification, proxy or other authorization furnished by any Depositary, as a Holder, with respect to such Global Security or impair, as between such Depositary and owners of beneficial interests in such Global Security, the operation of customary practices governing the exercise of the rights of such Depositary (or its nominee) as Holder of such Global Security. SECTION 3.10. Cancellation. ------------ All Securities and coupons surrendered for payment, redemption, repayment at the option of the Holder, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly canceled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold, and all Securities so delivered shall be promptly canceled by the Trustee. If the Company shall so acquire any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are surrendered to the Trustee for cancellation. No Securities shall be authenticated in lieu of or in - 37 - exchange for any Securities canceled as provided in this Section, except as expressly permitted by this Indenture. All canceled Securities and coupons held by the Trustee shall be disposed of as directed by a Company Order. SECTION 3.11. Computation of Interest. ----------------------- Except as otherwise specified as contemplated by Section 3.01 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months. SECTION 3.12. Currency and Manner of Payments in Respect of Securities. -------------------------------------------------------- (a) Unless otherwise specified with respect to any Securities pursuant to Section 3.01, with respect to Registered Securities of any series not permitting the election provided for in paragraph (b) below or the Holders of which have not made the election provided for in paragraph (b) below, and with respect to Bearer Securities of any series, except as provided in paragraph (d) below, payment of the principal of (and premium, if any) and interest, if any, on any Registered or Bearer Security of such series will be made in the Currency in which such Registered Security or Bearer Security, as the case may be, is payable. The provisions of this Section 3.12 may be modified or superseded with respect to any Securities pursuant to Section 3.01. (b) It may be provided pursuant to Section 3.01 with respect to Registered Securities of any series that Holders shall have the option, subject to paragraphs (d) and (e) below, to receive payments of principal of (or premium, if any) or interest, if any, on such Registered Securities in any of the Currencies which may be designated for such election by delivering to the Trustee for such series of Registered Securities a written election with signature guarantees and in the applicable form established pursuant to Section 3.01, not later than the close of business on the Election Date (as defined below) immediately preceding the applicable payment date. If a Holder so elects to receive such payments in any such Currency, such election will remain in effect for such Holder or any transferee of such Holder until changed by such Holder or such transferee by written notice to the Trustee for such series of Registered Securities (but any such change must be made not later than the close of business on the Election Date immediately preceding the next payment date to be effective for the payment to be made on such payment date and no such change of election may be made with respect to payments to be made on any Registered Security of such series with respect to which an Event of Default has occurred or with respect to which the Company has deposited funds pursuant to Article Four or Fifteen or with respect to which a notice of redemption has been given by the Company or a notice of option to elect repayment has been sent by such Holder or such transferee). Any Holder of any such Registered Security who shall not have delivered any such election to the Trustee of such series of Registered Securities not later than the close of business on the applicable Election Date will be paid the amount due on the applicable payment date in the relevant Currency as provided in Section 3.12(a). The Trustee for each such series of Registered Securities shall notify the Exchange Rate Agent as soon as practicable after the Election Date of the aggregate principal amount of Registered Securities for which Holders have made such written election. - 38 - (c) Unless otherwise specified pursuant to Section 3.01, if the election referred to in paragraph (b) above has been provided for pursuant to Section 3.01, then, unless otherwise specified pursuant to Section 3.01, not later than the fourth Business Day after the Election Date for each payment date for Registered Securities of any series, the Exchange Rate Agent will deliver to the Company a written notice specifying the Currency in which Registered Securities of such series are payable, the respective aggregate amounts of principal of (and premium, if any) and interest, if any, on the Registered Securities to be paid on such payment date, specifying the amounts in such Currency so payable in respect of the Registered Securities as to which the Holders of Registered Securities denominated in any Currency shall have elected to be paid in another Currency as provided in paragraph (b) above. If the election referred to in paragraph (b) above has been provided for pursuant to Section 3.01 and if at least one Holder has made such election, then, unless otherwise specified pursuant to Section 3.01, on the second Business Day preceding such payment date the Company will deliver to the Trustee for such series of Registered Securities an Exchange Rate Officer's Certificate in respect of the Dollar or Foreign Currency or Currencies amount receivable by Holders of Registered Securities who have elected payment in a Currency as provided in paragraph (b) above. Such amounts shall be determined by the Company on the basis of the applicable Market Exchange Rate in effect on the second Business Day (the "Valuation Date") immediately preceding each payment date, and such determination shall be conclusive and binding for all purposes, absent manifest error. (d) If a Conversion Event occurs with respect to a Foreign Currency in which any of the Securities are denominated or payable other than pursuant to an election provided for pursuant to paragraph (b) above, then with respect to each date for the payment of principal of (and premium, if any) and interest, if any, on the applicable Securities denominated or payable in such Foreign Currency occurring after the last date on which such Foreign Currency was used (the "Conversion Date"), the Dollar shall be the currency of payment for use on each such payment date. Unless otherwise specified pursuant to Section 3.01, the Dollar amount to be paid by the Company to the Trustee of each such series of Securities and by such Trustee or any Paying Agent to the Holders of such Securities with respect to such payment date shall be, in the case of a Foreign Currency other than a currency unit, the Dollar Equivalent of the Foreign Currency (as defined below) or, in the case of a currency unit, the Dollar Equivalent of the Currency Unit (as defined below), in each case as determined by the Exchange Rate Agent in the manner provided in paragraph (f) or (g) below. (e) Unless otherwise specified pursuant to Section 3.01, if the Holder of a Registered Security denominated in any Currency shall have elected to be paid in another Currency as provided in paragraph (b) above, and a Conversion Event occurs with respect to such elected Currency, such Holder shall receive payment in the Currency in which payment would have been made in the absence of such election; and if a Conversion Event occurs with respect to the Currency in which payment would have been made in the absence of such election, such Holder shall receive payment in Dollars as provided in paragraph (d) of this Section 3.12. (f) "Dollar Equivalent" when used with respect to any Foreign Currency shall be determined by the Exchange Rate Agent and shall be obtained for each subsequent payment date by converting the specified Foreign Currency into Dollars at the Market Exchange Rate on the Conversion Date. - 39 - (g) "Dollar Equivalent" when used with respect to any currency unit shall be determined by the Exchange Rate Agent and, subject to the provisions of paragraph (h) below, shall be the sum of each amount obtained by converting the Specified Amount (as defined below) of each Component Currency (as defined below) into Dollars at the Market Exchange Rate for such Component Currency on the Valuation Date with respect to each payment. (h) For purposes of this Section 3.12, the following terms shall have the following meanings: A "Component Currency" shall mean any currency which, on the Conversion Date, was a component currency of the relevant currency unit, including, but not limited to, the ECU. A "Specified Amount" of a Component Currency shall mean the number of units of such Component Currency or fractions thereof which were represented in the relevant currency unit, including, but not limited to, the ECU, on the Conversion Date. If after the Conversion Date the official unit of any Component Currency is altered by way of combination or subdivision, the Specified Amount of such Component Currency shall be divided or multiplied in the same proportion. If after the Conversion Date two or more Component Currencies are consolidated into a single currency, the respective Specified Amounts of such Component Currencies shall be replaced by an amount in such single currency equal to the sum of the respective Specified Amounts of such consolidated Component Currencies expressed in such single currency, and such amount shall thereafter be a Specified Amount and such single currency shall thereafter be a Component Currency. If after the Conversion Date any Component Currency shall be divided into two or more currencies, the Specified Amount of such Component Currency shall be replaced by amounts of such two or more currencies, having an aggregate Dollar Equivalent value at the Market Exchange Rate on the date of such replacement equal to the Dollar Equivalent of the Specified Amount of such former Component Currency at the Market Exchange Rate immediately before such division, and such amounts shall thereafter be Specified Amounts and such currencies shall thereafter be Component Currencies. If, after the Conversion Date of the relevant currency unit, including, but not limited to, the ECU, a Conversion Event (other than any event referred to above in this definition of "Specified Amount") occurs with respect to any Component Currency of such currency unit and is continuing on the applicable Valuation Date, the Specified Amount of such Component Currency shall, for purposes of calculating the Dollar Equivalent of the Currency Unit, be converted into Dollars at the Market Exchange Rate in effect on the Conversion Date of such Component Currency. "Election Date" shall mean the Regular Record Date for the applicable series of Registered Securities or at least 16 days prior to Maturity, as the case may be, or such other prior date for any series of Registered Securities as specified pursuant to Section 3.01(14) by which the written election referred to in Section 3.12(b) may be made. All decisions and determinations of the Exchange Rate Agent regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the Currency Unit, the Market Exchange Rate and changes in the Specified Amounts as specified - 40 - above shall be in its sole discretion and shall, in the absence of manifest error, be conclusive for all purposes and irrevocably binding upon the Company, the Trustee for the appropriate series of Securities and all Holders of such Securities denominated or payable in the relevant Currency. The Exchange Rate Agent shall promptly give written notice to the Company and the Trustee for the appropriate series of Securities of any such decision or determination. In the event that the Company determines in good faith that a Conversion Event has occurred with respect to a Foreign Currency, the Company will immediately give written notice thereof to the Trustee of the appropriate series of Securities and to the Exchange Rate Agent (and such Trustee will promptly thereafter give notice in the manner provided in Section 1.06 to the affected Holders) specifying the Conversion Date. In the event the Company so determines that a Conversion Event has occurred with respect to the ECU or any other currency unit in which Securities are denominated or payable, the Company will immediately give written notice thereof to the Trustee of the appropriate series of Securities and to the Exchange Rate Agent (and such Trustee will promptly thereafter give notice in the manner provided in Section 1.06 to the affected Holders) specifying the Conversion Date and the Specified Amount of each Component Currency on the Conversion Date. In the event the Company determines in good faith that any subsequent change in any Component Currency as set forth in the definition of Specified Amount above has occurred, the Company will similarly give written notice to the Trustee of the appropriate series of Securities and to the Exchange Rate Agent (and such Trustee will promptly thereafter give notice in the manner provided in Section 1.06 to the affected Holders). The Trustee of the appropriate series of Securities shall be fully justified and protected in relying and acting upon information received by it from the Company and the Exchange Rate Agent and shall not otherwise have any duty or obligation to determine the accuracy or validity of such information independent of the Company or the Exchange Rate Agent. SECTION 3.13. Appointment and Resignation of Successor Exchange Rate Agent. ------------------------------------------------------------ (a) Unless otherwise specified pursuant to Section 3.01, if and so long as the Securities of any series (i) are denominated in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long as it is required under any other provision of this Indenture, then the Company will maintain with respect to each such series of Securities, or as so required, at least one Exchange Rate Agent. The Company will cause the Exchange Rate Agent to make the necessary foreign exchange determinations at the time and in the manner specified pursuant to Section 3.01 for the purpose of determining the applicable rate of exchange and, if applicable, for the purpose of converting the issued Foreign Currency into the applicable payment Currency for the payment of principal (and premium, if any) and interest, if any, pursuant to Section 3.12. (b) No resignation of the Exchange Rate Agent and no appointment of a successor Exchange Rate Agent pursuant to this Section shall become effective until the acceptance of appointment by the successor Exchange Rate Agent as evidenced by a written instrument delivered to the Company and the Trustee of the appropriate series of Securities accepting such appointment executed by the successor Exchange Rate Agent. - 41 - (c) If the Exchange Rate Agent shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of the Exchange Rate Agent for any cause, with respect to the Securities of one or more series, the Company, by or pursuant to a Board Resolution, shall promptly appoint a successor Exchange Rate Agent or Exchange Rate Agents with respect to the Securities of that or those series (it being understood that any such successor Exchange Rate Agent may be appointed with respect to the Securities of one or more or all of such series and that, unless otherwise specified pursuant to Section 3.01, at any time there shall only be one Exchange Rate Agent with respect to the Securities of any particular series that are originally issued by the Company on the same date and that are initially denominated and/or payable in the same Currency). SECTION 3.14. CUSIP Numbers. ------------- The Company in issuing the Securities may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall indicate the "CUSIP" numbers of the Securities in notices of redemption as a convenience to Holders; provided that neither the Company nor the Trustee shall have any responsibility for any defect in the CUSIP number that appears on any Security, check, advice of payment or notice, and any such document may contain a statement to the effect that CUSIP numbers have been assigned by an independent service for convenience of reference and that neither the Company nor the Trustee shall be liable for any inaccuracy in such numbers; and provided further that any such document may state that no representation is made as to the correctness or accuracy of such numbers either as printed on the Securities or as contained in any notice of redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. SECTION 3.15. Certification by a Person Entitled to Delivery of ------------------------------------------------- Bearer Security. --------------- Whenever any provision of this Indenture or a Security contemplates that certification be given by a Person entitled to delivery of a Bearer Security, such certification shall be provided substantially in the form of Exhibit A-1 and, if applicable, A-2 hereto, with only such changes as shall be approved by the Company and consented to by the Trustee whose consent shall not unreasonably be withheld. SECTION 3.16. 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, if any, 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, if any, 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 - 42 - 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 of such payment; (c) if the amount in the Designated Currency that may be purchased falls short of the amount originally due for any reason, the Company shall pay such additional amounts needed to compensate for any short fall; 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. SECTION 3.17. Medium Term Securities. ---------------------- Notwithstanding any contrary provision herein, if all Securities of a series are not to be originally issued at one time, it shall not be necessary for the Company to deliver to the Trustee an Officers' Certificate, Board Resolution, supplemental indenture, Opinion of Counsel or Company Order otherwise required pursuant to Sections 1.02, 3.01 and 3.03 at or prior to the time of authentication of each Security of such series if such documents are delivered to the Trustee or its agent at or prior to the authentication upon original issuance of the first Security of such series to be issued; 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 2.01 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 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 (any such telephonic or electronic instructions to be promptly confirmed in writing by such persons) 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. ARTICLE FOUR SATISFACTION AND DISCHARGE SECTION 4.01. Satisfaction and Discharge of Indenture. --------------------------------------- This Indenture shall cease to be of further effect with respect to any series of Securities (except as to any surviving rights of conversion or - 43 - transfer or exchange of Securities of such series expressly provided for herein or in the form of Security for such series and rights to receive payments of principal (and premium, if any) and interest, if any, thereon and any right to receive additional amounts, as provided in Section 10.05), and the Trustee, on the demand and at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to such series, when (1) either (A) all Securities of that series theretofore authenticated, issued and delivered and all coupons appertaining thereto (other than (i) coupons appertaining to Bearer Securities of that series surrendered in exchange for Registered Securities of that series and maturing after such exchange, surrender of which is not required or has been waived as provided in Section 3.05; (ii) Securities of that series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.06; (iii) coupons appertaining to Bearer Securities of that series called for redemption or surrendered for repayment and maturing after the relevant Redemption Date or Repayment Date, as appropriate, surrender of which has been waived as provided in Section 11.06 or 13.03; and (iv) Securities of that series for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 10.03), have been delivered to the Trustee for cancellation; or (B) all such Securities of that series and, in the case of (B) (i) or (ii) below, any coupons appertaining thereto, not theretofore delivered to the Trustee cancelled or for cancellation (i) have become due and payable, or (ii) will become due and payable at their Stated Maturity within one year, or (iii) if redeemable at the option of the Company, are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, and the Company, in the case of (B) (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose an amount, which shall be immediately due and payable, sufficient to pay and discharge the entire indebtedness on such Securities and such coupons not theretofore delivered to the Trustee cancelled or for cancellation, for principal (and premium, if any) and interest, if any, to the date of such deposit (in the case of Securities which have become due and payable), or to the Stated Maturity or Redemption Date, or any Repayment Dates, as the case may be; (2) the Company has paid or caused to be paid all other sums payable hereunder by the Company with respect to the Securities of such series; and - 44 - (3) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture with respect to the Securities of such series have been complied with. Notwithstanding the satisfaction and discharge of this Indenture with respect to the Securities of such series, the obligations of the Company to the Trustee with respect to that series under Section 6.07, the obligations of the Trustee to any Authenticating Agent with respect to that series under Section 6.14 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations of the Trustee under Section 4.02 and the last paragraph of Section 10.03 shall survive. SECTION 4.02. Application of Trust Money. -------------------------- (a) Subject to the provisions of Article Sixteen and the last paragraph of Section 10.03, all money deposited with the Trustee pursuant to Section 4.01 or 15.04 shall be held in trust and applied by it, in accordance with the provisions of the series of Securities in respect of which it was deposited, the appurtenant coupons and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto of the principal (and premium, if any) and interest, if any, 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. (b) If the Trustee or the Paying Agent is unable to apply any money in accordance with this Article Four with respect to the Securities of any series by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company's obligations under this Indenture and the Securities of such series shall be revived and reinstated as though no deposit had occurred pursuant to this Article Four with respect to Securities of such series until such time as the Trustee or Paying Agent is permitted to apply all money held in trust pursuant to this Section 4.02 with respect to Securities of such series in accordance with this Article Four; provided, however, that if the Company makes any payment of principal, premium or interest on any Security of such series following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of Securities of such series to receive payment from the money so held in trust. ARTICLE FIVE REMEDIES SECTION 5.01. Events of Default. ----------------- "Event of Default", wherever used herein, with respect to any series of Securities, 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 such event is either inapplicable to a particular series or it is - 45 - specifically deleted or modified in or pursuant to the supplemental indenture or Board Resolution creating such series of Securities or in the form of Security for such Series: (1) default in the payment of any installment of interest upon any Security of that series or of any coupon appertaining thereto when it becomes due and payable, and continuance of such default for a period of 30 days, whether or not such payment shall be prohibited by Article Sixteen; or (2) default in the payment of the principal of (or premium, if any, on) any Security of that series at its Maturity, whether or not such payment shall be prohibited by Article Sixteen; or (3) default in the payment of any sinking or purchase fund or analogous obligation when and as the same becomes due by the terms of the Securities of such series, whether or not such payment shall be prohibited by Article Sixteen; or (4) default in the performance, or breach, of any covenant or warranty of the Company in this Indenture in respect of the Securities of such series (other than a covenant or warranty in respect of the Securities of such series a default in the performance of which or the breach of which is elsewhere in this Section specifically dealt with), all of such covenants and warrants in this Indenture which are not expressly stated to be for the benefit of a particular series of Securities being deemed in respect of the Securities of all series for this purpose, and continuance of such default or breach for a period of 90 consecutive days after receipt by the Company from the Trustee or by the Company and the Trustee from the Holders of at least 25% in principal amount of the Outstanding Securities of such series, of a written notice, by registered or certified mail, specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; or (5) (i) a default occurs under any instrument or instruments (including this Indenture) under which there is at the time outstanding, or by which there may be secured or evidenced, any indebtedness of the Company or any Subsidiary for money borrowed by the Company or any Subsidiary or any guarantee of payment by the Company or any Subsidiary of any obligation of any Person which results in acceleration (whether by declaration or automatically) of, or the nonpayment at maturity (after giving effect to any applicable grace of period) of, such indebtedness or guarantee in an aggregate amount exceeding $15,000,000, in which case the Company shall immediately give notice to the Trustee of such acceleration or nonpayment and (ii) there shall have been a failure to cure such default or to discharge all such defaulted indebtedness or guarantee or such default is not otherwise waived and such acceleration has not been rescinded or annulled within fifteen (15) days after receipt by the Company from the Trustee or by the Company and the Trustee from the Holders of at least 25% in aggregate principal amount of the Securities then Outstanding (excluding, if such defaulted indebtedness includes any series of Securities, such series of Securities) of a written notice thereof, by registered or certified mail, and stating that such notice is a "Notice of Default" hereunder; or (6) the entry of an order for relief against the Company under the Federal Bankruptcy Code by a court having jurisdiction in the premises or a decree or - 46 - order by a court having jurisdiction in the premises adjudging the Company bankrupt or insolvent under any other applicable Federal or State law, or the entry of a decree or order 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 law, or appointing a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 90 consecutive days; or (7) the consent by the Company to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under the Federal Bankruptcy Code or any other applicable Federal or State law, or the consent by it to the filing of any such petition or to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any such action; or (8) any other Event of Default provided in the supplemental indenture or Board Resolution under which such series of Securities is issued or in the form of Security for such series. SECTION 5.02. Acceleration of Maturity; Rescission and Annulment. -------------------------------------------------- If an Event of Default with respect to Securities of any series at the time Outstanding occurs and is continuing, unless the principal amount of all the Securities of such series shall have already become due and payable, then in every such case either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of that series (acting as a separate class) may declare the principal amount (or, if any of the Securities of that series are Original Issue Discount Securities or Indexed Securities, such portion of the principal amount of such Securities as may be specified in the terms thereof) of all of the Outstanding Securities of that series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration, subject to Article Sixteen, such principal amount (or specified amount) shall become immediately due and payable. Upon payment to the Holders of such amount, all obligations of the Company in respect of the payment of principal of the Securities of such series shall terminate. - 47 - At any time after such acceleration with respect to Securities of any series has occurred 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 that series (and without notice to any Holder of that Series), by written notice to the Trustee, may rescind and annul such declaration and its consequences if: (1) the Company has paid or deposited with the Trustee a sum sufficient to pay, in the Currency in which the Securities of that series are payable (except as may otherwise be specified pursuant to Section 3.01 for such series and except as may be provided in Section 3.12, if and to the extent applicable): (A) all overdue installments of interest on all Outstanding Securities of that series, and any related coupons, (B) the principal of (and premium, if any, on) all Outstanding Securities of that series which have become due otherwise than by such acceleration and any interest thereon at the rate or rates prescribed therefor in such Securities, to the extent that payment of such interest is lawful, (C) interest upon the Defaulted Interest at the rate or rates prescribed therefor in such Securities and any related coupons, to the extent that payment of such interest is lawful, and (D) all sums paid or advanced by the Trustee hereunder, and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and all other amounts due the Trustee under Section 6.07, and (2) all Events of Default with respect to Securities of that series, other than the non-payment of the principal of (or premium, if any) or interest, if any, on Securities of that series which have become due solely by such acceleration, have been cured or waived as provided in Section 5.13. No such rescission shall affect any subsequent default or impair any right consequent thereto. - 48 - SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee. --------------------------------------------------------------- The Company covenants that if an Event of Default specified in Sections 5.01(1), 5.01(2) or 5.01(3) occurs with respect to Securities of any series, the Company will, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of such Securities and any coupons appertaining thereto, the whole amount then due and payable on such Securities and coupons for principal (and premium, if any) and interest, if any, and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal (and premium, if any) and on any overdue installments of interest, at the rate or rates prescribed therefor in such Securities and coupons, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and all other amounts due the Trustee under Section 6.07. 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 Securities of such series 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 Securities of such series, wherever situated. If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series and any related coupons by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy. SECTION 5.04. Trustee May File Proofs of Claim. -------------------------------- In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities of a series or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal (and premium, if any) or interest, if any, in respect of the Securities of that series 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 any such amount) shall be entitled and empowered, by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of principal (or in the case of Original Issue Discount Securities or Indexed Securities, such portion of the principal as may be provided in the terms thereof) (and premium, if any) and interest, if any, owing and unpaid in respect of such Securities and any appurtenant coupons 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 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; - 49 - and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder of Securities of such series and coupons 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 such reasonable compensation, expenses, disbursements and advances of the Trustee and any predecessor Trustee, their agents and counsel, and any other amounts due the Trustee or any predecessor Trustee under Section 6.07. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder of a Security or coupon any plan of reorganization, arrangement, adjustment or composition affecting the Securities or coupons 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; provided, however, that the Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors' or other similar committee. SECTION 5.05. Trustee May Enforce Claims Without Possession of ------------------------------------------------ Securities or Coupons. --------------------- All rights of action and claims under this Indenture or the Securities or coupons may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.07, be for the ratable benefit of the Holders of the Securities and coupons in respect of which such judgment has been recovered. SECTION 5.06. Application of Money Collected. ------------------------------ Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal (or premium, if any) or interest, if any, upon presentation of the Securities or coupons, or both, and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid: FIRST: To the payment of costs and expenses of collection, including all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses and disbursements of the Trustee, its agents and counsel and all other amounts due the Trustee under Section 6.07; SECOND: to holders of Senior Indebtedness to the extent required by Article Sixteen; - 50 - THIRD: To the payment of the amounts then due and unpaid for principal of (and premium, if any) and interest, if any, on the Securities and coupons in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal (and premium, if any) and interest, if any, 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 FOURTH: The balance, if any, to the Company, its successors or assigns, or to whomever may be lawfully entitled to receive same, or as a court of competent jurisdiction may direct. The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 5.06. At least 15 days before such record date, the Company shall, upon written request of the Trustee, mail to each Holder a notice that states the record date, payment date and amount to be paid. SECTION 5.07. 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 (1) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series; (2) the Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder; (3) such Holder or Holders have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities to be incurred in compliance with such request; (4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and (5) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of that series; - 51 - it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders. SECTION 5.08. Unconditional Right of Holders to Receive Principal, ---------------------------------------------------- Premium and Interest. -------------------- Notwithstanding any other provision in this Indenture, but subject to Article Sixteen, the Holder of any Security or coupon shall have the right, which is absolute and unconditional, to receive payment of the principal of (and premium, if any) and (subject to Section 3.05 or 3.07) interest, if any, on such Security or 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, as the case may be) and to institute suit for the enforcement of any such payment on and after the respective Stated Maturities or applicable Redemption Date or Repayment Date, and such rights shall not be impaired without the consent of such Holder. SECTION 5.09. Restoration of Rights and Remedies. ---------------------------------- If the Trustee or any Holder of any 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, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders of any Security or coupon shall continue as though no such proceeding had been instituted. SECTION 5.10. Rights and Remedies Cumulative. ------------------------------ Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities 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 of any Security or coupon 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. - 52 - SECTION 5.11. 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 Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be. SECTION 5.12. Control by Holders. ------------------ The Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series, provided that: (1) the Trustee shall have the right to decline to follow any such direction if the Trustee, being advised by counsel, determines that the action so directed may not lawfully be taken or would conflict with this Indenture or if the Trustee in good faith shall determine that the proceedings so directed would involve it in personal liability or be unjustly prejudicial to the Holders not taking part in such direction, and (2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction. This Section 5.12 shall be in lieu of Section 316 (a)(1)(A) of the Trust Indenture Act and such Section 316 (a)(1)(A) is hereby expressly excluded from this Indenture, as permitted by the Trust Indenture Act. SECTION 5.13. Waiver of Past Defaults. ----------------------- The Holders of not less than a majority in principal amount of the Outstanding Securities of any series may by notice to the Trustee (and without notice to any other Holder) on behalf of the Holders of all the Securities of such series and any related coupons waive any past default hereunder with respect to such series and its consequences, except (if not theretofore cured): (1) an Event of Default described in Section 5.01(1), (2) or (3), or (2) a default 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 or coupons affected. Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereto. This Section 5.13 shall be in lieu of Section 316 (a)(1)(B) of the Trust Indenture Act and such Section 316 - 53 - (a)(1)(B) is hereby expressly excluded from this Indenture, as permitted by the Trust Indenture Act. SECTION 5.14. 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 or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee or the Company, 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 to which the suit relates, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any) or interest, if any, on any Security on or after the respective Stated Maturities expressed in such Security (or, in the case of redemption or repayment, on or after the Redemption Date or Repayment Date, as the case may be). SECTION 5.15. Waiver of Usury, 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 usury, 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. - 54 - ARTICLE SIX THE TRUSTEE SECTION 6.01. Certain Duties and Responsibilities. ----------------------------------- (a) Except during the continuance of an Event of Default with respect to any series of Securities, (1) the Trustee shall not be liable except for the performance of such duties and only such duties as are specifically set forth in this Indenture with respect to the Securities of such series, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and (2) in the absence of bad faith on its part, the Trustee may, with respect to Securities of such series, conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture. (b) In case an Event of Default with respect to any series of Securities has occurred and is continuing, the Trustee shall exercise with respect to the Securities of such series such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. (c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that (1) this Subsection shall not be construed to limit the effect of Subsection (a) of this Section; (2) the Trustee shall not be liable for any error of judgment made in good faith a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; (3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities of any series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such series; and - 55 - (4) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section. SECTION 6.02. Notice of Defaults. ------------------ Within 90 days after the occurrence of any default hereunder of which the Trustee has knowledge with respect to Securities of any series, the Trustee shall transmit by mail, in the manner and to the extent provided in TIA Section 313(c), to all Holders of such series, as their names and addresses appear in the Security Register, notice of such default hereunder known to the Trustee, unless such default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal of (or premium, if any) or interest, if any, on any Security of such series or in the payment of any sinking or purchase fund installment or analogous obligation 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 officers of the Trustee in good faith determine that the withholding of such notice is in the interests of the Holders of such series; and provided further, that in the case of any default of the character specified in Section 5.01(4) with respect to Securities of such series no such notice to Holders 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, an Event of Default with respect to Securities of such series. The Trustee shall not be deemed to have knowledge of any Event of Default or of any event or condition which, with the giving of notice, the passage of time or both, might constitute an Event of Default unless (i) the Trustee has received written notice thereof from the Company or a Holder or (ii) a Responsible Officer of the Trustee shall have actual knowledge thereof. SECTION 6.03. Certain Rights of Trustee. ------------------------- Except as otherwise provided in Section 6.01: (a) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, Officers' Certificate or other certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; - 56 - (b) any instruction, request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution; (c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting to take any action hereunder, the Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers' Certificate; (d) before the Trustee acts or refrains from acting, the Trustee may consult with counsel of its selection and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; (e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Securities of any series or any related coupons pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction: (f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent, reasonably acceptable to the Company, or attorney; (g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys reasonably acceptable to the Company 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 no Depositary or Paying Agent shall be deemed an agent of the Trustee and the Trustee shall not be responsible for any act or omission by any of them; (h) the Trustee shall not be responsible for the computation of any adjustment to the Conversion Price or for any determination as to whether an adjustment is required; and (i) 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, rights or powers conferred upon it by this Indenture. SECTION 6.04. Not Responsible for Recitals or Issuance of Securities. ------------------------------------------------------ - 57 - The recitals contained herein and in the Securities, except the Trustee's certificates of authentication, and in any coupons, shall be taken as the statements of the Company, and the Trustee or any Authenticating Agent assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities or any coupons, except that the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the Securities and perform its obligations hereunder and that the statements made by it in a Statement of Eligibility on Form T-1 supplied to the Company are true and accurate, subject to the qualifications set forth therein. The Trustee or any Authenticating Agent shall not be accountable for the use or application by the Company of Securities or the proceeds thereof. SECTION 6.05. May Hold Securities. ------------------- The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Securities and coupons and, subject to Sections 6.08 and 6.13, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent. SECTION 6.06. Money Held in Trust. ------------------- Subject to the provisions of Article Sixteen and Section 10.03, all moneys received by the Trustee shall, until used or applied as herein provided, be held by the Trustee in trust hereunder for the purposes for which they were received, and shall be segregated from the funds of the Trustee, other than funds held in trust. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed to in writing by the Company and the Trustee. SECTION 6.07. Compensation and Reimbursement. ------------------------------ The Company agrees: (1) to pay to the Trustee from time to time, and the Trustee shall be entitled to, such compensation as the Company and the Trustee shall from time to time agree in writing for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); (2) 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 - 58 - (3) to indemnify each of the Trustee and each of the Trustee's directors, officers, employees, agents, successors and assigns (the "Indemnitees") or any predecessor Trustee for, and to hold them harmless against, any and all losses, damages, claims, liabilities or expenses, including taxes (other than taxes based upon, measured by or determined by the income of the Trustee), incurred without negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending the Indemnitees against any claim or liability in connection with the exercise or performance of any of their powers or duties hereunder as Trustee, Authenticating Agent, Security Registrar or Paying Agent. The obligations of the Company under this Section 6.07 to compensate the Trustee, to pay or reimburse the Trustee for expenses, disbursements and advances and to indemnify and hold harmless the Trustee shall constitute additional indebtedness hereunder and shall survive the termination of this Indenture. As security for the performance of such obligations of the Company, the Trustee shall have a claim 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 (and premium, if any, on) or interest, if any, on particular Securities. The obligations of the Company to the Trustee under this Section 6.07 shall not be subordinated to the payment of Senior Indebtedness under Article Sixteen. When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 5.01(6) or Section 5.01(7), the expenses (including reasonable fees and expenses of its counsel) and the compensation for the service in connection therewith are intended to constitute expense of administration under any applicable bankruptcy, insolvency or other similar law. The Trustee shall give the Company notice of any claim or liability for which the Trustee might be entitled to indemnification under subparagraph (3) of this Section 6.07 within a reasonable amount of time after a Responsible Officer becomes actually aware of such claim or liability. SECTION 6.08. Disqualification; Conflicting Interests. --------------------------------------- If the Trustee has or shall acquire a conflicting interest within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee shall either eliminate such 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 such Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under (i) this Indenture with respect to Securities of any particular series of Securities other than that series and (ii) any other indenture or indentures in each case as and to the extent that such series or indenture satisfies the requirements set forth in Section 310(b)(i) of the Trust Indenture Act. Nothing herein shall prevent the Trustee from filing with the Commission the application referred to in the penultimate paragraph of Section 310(b) of the Trust Indenture Act. SECTION 6.09. Corporate Trustee Required; Eligibility. --------------------------------------- (a) There shall at all times be a Trustee hereunder with respect to each series of Securities, which shall be either: (i) a corporation organized and doing business under the laws of the United States of America or of any State, the District of Columbia or, for Bearer Securities only, any Territory authorized under such laws to exercise corporate trust powers and subject to supervision or examination by Federal, State, District of Columbia or Territory authority, or (ii) a corporation or other Person organized and doing business under the laws of a foreign government that is permitted to act as Trustee pursuant to a rule, regulation or order of the Commission, authorized under such laws to exercise corporate trust powers, and subject to supervision or examination by authority of such foreign government or a political subdivision thereof substantially equivalent to supervision or examination applicable to United States institutional trustees, in either case having a combined capital and surplus of at least $50,000,000, except that the initial Trustee hereunder shall be required to maintain a combined capital and surplus of at least $10,000,000. 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. - 59 - Neither the Company nor any person directly or indirectly controlling, controlled by, or under common control with the Company shall serve as trustee for the Securities of any series issued hereunder. 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 specified in Section 6.10. (b) The Company may appoint a separate Trustee for any one or more series of Securities. The Trustee for each such series shall be identified in a supplemental indenture and shall be the sole Trustee with respect to such series of Securities and shall have all the rights, duties and obligations as with respect to such series as reserved to the Trustee hereunder as if set forth in such supplemental indenture. SECTION 6.10. Resignation and Removal; Appointment of Successor. ------------------------------------------------- No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 6.11. The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company. If the instrument - 60 - of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series. The Trustee may be removed at any time with respect to the Securities of any series 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. If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of such notice of removal, the Trustee subject to removal may petition any court of competent jurisdiction for the appointment of a successor Trustee. If at any time: (1) the Trustee shall fail to comply with Section 310(b) of the Trust Indenture Act pursuant to Section 6.08 with respect to any series of Securities after written request therefor by the Company or by any Holder of a Security of that series who has been a bona fide Holder of such Security for at least six months, or (2) the Trustee shall cease to be eligible under Section 6.09 with respect to any series of Securities and shall fail to resign after written request therefor by the Company or by any such Holder, or (3) the Trustee shall become incapable of acting with respect to any series of Securities, or (4) the Trustee 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, or (5) the Trustee shall commence a voluntary case under the Federal bankruptcy laws, as now or hereafter constituted, or any other applicable Federal or state bankruptcy, insolvency or similar law or shall consent to the appointment of or taking possession by a receiver, custodian, liquidator, assignee, trustee, sequestrator (or other similar official) of the Trustee or its property or affairs, or shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts generally as they become due, or shall take corporate action in furtherance of any such action, then, in any such case, (i) the Company by a Board Resolution may remove the Trustee with respect to such series, or in the case of clauses (4) or (5), with respect to all series of Securities, or (ii) subject to Section 5.14, 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, or in the case of clauses (4) or (5), with respect to all series of Securities. - 61 - If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company, 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 6.11. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by 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, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 6.11, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders of such series and accepted appointment in the manner required by Section 6.11, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series. 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 to all Holders of Securities of such series in the manner provided in Section 1.06. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office. SECTION 6.11. Acceptance of Appointment by Successor. -------------------------------------- In case of the appointment hereunder of a successor Trustee with respect to all 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 and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its reasonable charges, if any, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder. 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 any applicable series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that - 62 - or those series to which the appointment of such successor Trustee relates, (2) 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 (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in 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. 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 the first two paragraphs of this Section 6.11, as the case may be. No successor Trustee with respect to any 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 and under the Trust Indenture Act. SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business. ----------------------------------------------------------- Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article and under the Trust Indenture Act, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities. SECTION 6.13. Preferential Collection of Claims Against Company. ------------------------------------------------- If and when the Trustee shall be or become a creditor, directly or indirectly, of the Company (or any other obligor upon the Securities), the - 63 - Trustee shall be subject to the provisions of Section 311(a) of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor), excluding any creditor relationships described in Section 311(b) of the Trust Indenture Act. A Trustee who resigned or has been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent indicated therein. SECTION 6.14. Appointment of Authenticating Agent. ----------------------------------- The Trustee, with the prior written approval of the Company, may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 3.06, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee's certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent appointed by the Trustee 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 or, for Bearer Securities only, any Territory of the United States of America, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and, if other than the Company itself, subject to supervision or examination by Federal, State, District of Columbia or such Territory authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then, for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent appointed by the Trustee shall cease to be eligible in accordance with the provisions of this Section 6.14, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section. 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 6.14, 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, if other than the Company, and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent, if other than the Company, and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 6.14, the Trustee, with the approval of the Company, may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall mail - 64 - written notice of such appointment by first-class mail, postage prepaid, to all Holders of Securities of the series with respect to which such Authenticating Agent will serve, as their names and addresses appear in the Security Register. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section 6.14. The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section. If an appointment with respect to one or more series is made pursuant to this Section 6.14, the Securities of such series may have endorsed thereon, in addition to the Trustee's certificate of authentication, an alternative certificate of authentication in the following form: This is one of the Securities of the series designated therein referred to in the within mentioned Indenture. Chemical Trust Company of California, as Trustee By:__________________________________ As Authenticating Agent By:__________________________________ Authorized Officer ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders. --------------------------------------------------------- The Company and any other obligor upon the Securities will furnish or cause to be furnished to the Trustee: (a) semi-annually, not later than 15 days after each Regular Record Date for each series of Securities at the time Outstanding, a list, in such form as the Trustee may reasonably require, containing all information in the possession or control of the Company or any other such obligor, or of any of the Company's or such other obligor's Paying Agents, as to the names and addresses of the Holders of Registered Securities of such series as of the preceding Regular Record Date (or a date to be determined pursuant to Section 3.01 for Original Issue Discount Securities), and - 65 - (b) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished; excluding from any such list names and addresses received by the Trustee in its capacity as Security Registrar. SECTION 7.02. Preservation of Information; Communications to Holders. ------------------------------------------------------ The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders of Registered Securities contained in the most recent list furnished to the Trustee as provided in Section 7.01 and the names and addresses of Holders of Registered Securities received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 7.01 upon receipt of a new list so furnished. The Trustee shall preserve for at least two years the names and addresses of Holders of Bearer Securities filed with the Trustee by such Holders. The rights of the Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided by Section 312(b) of the Trust Indenture Act. Every Holder of Securities or coupons, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act. SECTION 7.03. Reports by Trustee. ------------------ The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to Section 313 of the Trust Indenture Act at the times and in the manner provided pursuant thereto, if so required. A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, with the Commission and with the Company. The Company will notify the Trustee in writing when any Securities are listed on any stock exchange. SECTION 7.04. Reports by Company. ------------------ The Company shall file with the Trustee and the Commission, and transmit to Holders, such information, documents and other reports, and such summaries thereof, as may be required pursuant to Section 314(a) of the Trust Indenture Act at the times and in the manner provided pursuant to the TIA; provided that any such information, documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the same is so required to be filed with the Commission. - 66 - ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms. ---------------------------------------------------- The Company, in a single transaction or through a series of related transactions, shall not consolidate with or merge with or into any other Person or transfer (by lease, assignment, sale or otherwise) all or substantially all of its properties and assets to another Person or group of affiliated Persons, unless: (a) either (1) the Company shall be the continuing corporation or (2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or to which all or substantially all of the properties and assets of the Company are transferred (i) shall be a corporation, partnership or trust organized and validly existing under the laws of the United States of America or any State thereof or the District of Columbia and (ii) shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all of the obligations of the Company under the Securities and this Indenture and the performance of every covenant of this Indenture on the part of the Company to be performed or observed; (b) immediately after giving effect to such transaction, and the assumption contemplated by clause (a) above, no Event of Default, and no event which, after notice or lapse of time, or both, would become an Event of Default, shall have occurred and be continuing; and (c) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with this Article VIII and that all conditions precedent herein provided for relating to such transaction have been satisfied. For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise) of the properties and assets of one or more Subsidiaries (other than to the Company or another wholly-owned Subsidiary), which, if such assets were owned by the Company, would constitute all or substantially all of the properties and assets of the Company, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. SECTION 8.02. Successor Person Substituted. ---------------------------- The successor Person formed by such consolidation or into which the Company is merged or the successor Person to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor had been named as the Company herein, and thereafter, except in the case of a lease of its properties and assets substantially as an entirety, the Company shall be discharged and released from all obligations and covenants - 67 - under this Indenture and the Securities. The Trustee shall enter into a supplemental indenture to evidence the succession and substitution of such successor Person and such discharge and release of the Company. ARTICLE NINE SUPPLEMENTAL INDENTURES SECTION 9.01. Supplemental Indentures Without Consent of Holders. -------------------------------------------------- Without the consent of any Holders of 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: (1) to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company herein and in the Securities; or (2) to add to the covenants of the Company, or to surrender any right or power herein conferred upon the Company, for the benefit of the Holders of all or any series of Securities or coupons (and if such covenants or the surrender of such right or power are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included or such surrenders are expressly being made solely for the benefit of such series); provided that such action pursuant to this clause (2) shall not adversely affect the interests of the Holders of any series or any appurtenant coupons in any material respect; or (3) to add any additional Events of Default (and if such Events of Default are to be applicable to less than all series of Securities, stating that such Events of Default are expressly being included solely to be applicable to such series): or (4) 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 (or premium, if any) on Registered Securities or of principal (or premium, if any) or any interest, if any, on Bearer Securities, to permit Bearer Securities to be issued in exchange for Registered Securities of other authorized denominations or to permit or facilitate the issuance of Securities in uncertificated form; provided that 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 (5) to add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities, provided that any such addition, change or elimination provided for in this clause (5): (i) shall neither (A) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such - 68 - provision nor (B) modify the rights of the Holder of any such Security with respect to such provision or (ii) shall become effective only when there is no Outstanding Security; or (6) to add to this Indenture such provisions as may be expressly permitted by the Trust Indenture Act, excluding, however, the provisions referred to in Section 316(a)(2) of the Trust Indenture Act as in effect at the date as of which this instrument was executed or any corresponding provision in any similar Federal statute hereafter enacted; or (7) to establish the form or terms of Securities of any series as permitted by Sections 2.01 and 3.01; or (8) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11; or (9) to cure any ambiguity, to correct or supplement any provision herein which may be inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture; provided that such action pursuant to this clause (9) shall not adversely affect the interests of the Holders of Securities of any series or any appurtenant coupons in any material respect; or (10) to comply with the requirements of the Commission in order to effect or maintain the qualification of this Indenture under the Trust Indenture Act. SECTION 9.02. Supplemental Indentures with Consent of Holders. ----------------------------------------------- With the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of each series affected by such supplemental indenture, by Act of said Holders delivered to the Company and the Trustee, the Company, 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 under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby: (1) change the Maturity of the principal of, or the Stated Maturity of any premium on, or any installment of principal of or interest on, any Security, or reduce the principal amount thereof (or premium, if any) or the rate of interest, if any, thereon or any premium payable upon the redemption thereof, or repayment thereof, or change any obligation of the Company to pay additional amounts pursuant to Section 10.05 (except as contemplated by Section 8.01(1) and permitted by Section 9.01(1)) or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02, or change any Place of Payment where, or the Currency in - 69 - which, any Security (or premium, if any) or interest, if any, thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Maturity or Stated Maturity thereof (or, in the case of redemption or repayment, on or after the Redemption Date or Repayment Date, as applicable); or (2) 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 certain defaults hereunder and their consequences provided for in this Indenture or reduce the quorum or voting requirements of Section 14.04; or (3) modify any of the provisions of this Section 9.02 or Section 5.13, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby, provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to "the Trustee" and concomitant changes in this Section 9.02, or the deletion of this proviso, in accordance with the requirements of Section 6.11 and 9.01(8). 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. The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Persons entitled to consent to any indenture supplemental hereto. If a record date is fixed, the Holders on such record date, or their duly designated proxies, and only such Persons, shall be entitled to consent to such supplemental indenture, whether or not such Holders remain Holders after such record date; provided, that unless such consent shall have become effective by virtue of the requisite percentage having been obtained prior to the date which is 120 days after such record date, any such consent previously given shall automatically and without further action by any Holder be cancelled and of no further effect. SECTION 9.03. Execution of Supplemental Indentures. ------------------------------------ In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be - 70 - obligated to, enter into any such supplemental indenture which affects the Trustee's own rights, duties or immunities under this Indenture or otherwise. SECTION 9.04. Effect of Supplemental Indentures. --------------------------------- Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby. SECTION 9.05. Conformity with Trust Indenture Act. ----------------------------------- Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect. SECTION 9.06. Reference in Securities to Supplemental Indentures. -------------------------------------------------- Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company or the Trustee shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series. SECTION 9.07. Notice of Supplemental Indenture. -------------------------------- Promptly after the execution by the Company and the Trustee of any supplemental indenture applicable to the Holders of Securities of one or more series pursuant to Section 9.02, the Company shall transmit to such Holders a notice setting forth the substance of such supplemental indenture. ARTICLE TEN COVENANTS SECTION 10.01. 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 (and premium, if any) and interest, if any, on the Securities of that series in accordance with the terms of the Securities, any appurtenant coupons and this Indenture. Any interest due on Bearer Securities on or before Maturity, other than additional amounts, if any, payable as provided in Section 10.05 in respect of principal of (or premium, if any, on) such a Security, shall be payable only upon presentation and surrender of the several coupons for such interest installments as are evidenced thereby as they severally mature. Unless otherwise specified with respect to Securities of any series pursuant to Section - 71 - 3.01, at the option of the Company, all payments of principal may be paid by check to the registered Holder of the Registered Security or other person entitled thereto against surrender of such Security. 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 upon presentation and surrender of the several coupons for such interest installments as are evidenced thereby as they severally mature. SECTION 10.02. Maintenance of Office or Agency. ------------------------------- The Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series (but, except as otherwise provided below, unless such Place of Payment is located outside the United States, not Bearer Securities) 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. If Securities of a series are issuable as Bearer Securities, the Company will maintain, subject to any laws or regulations applicable thereto, an office or agency in a Place of Payment for such series which is located outside the United States where Securities of such series and the related coupons may be presented and surrendered for payment (including payment of any additional amounts payable on Securities of such series pursuant to Section 10.05); provided, however, that if the Securities of such series are listed on The Stock Exchange of the United Kingdom and the Republic of Ireland or the Luxembourg Stock Exchange or any other stock exchange located outside the United States and such stock exchange shall so require, the Company will maintain a Paying Agent 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 such series are listed on such exchange. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the principal Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all the presentations, surrenders, notices and demands, 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 10.05) at the place specified for the purpose pursuant to Section 3.01(5). No payment of principal of (or premium, if any) or interest, if any, 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 other similar restrictions and the Trustee receives an Opinion of Counsel that such payment within the United States is legal. Unless otherwise - 72 - 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 such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. SECTION 10.03. Money for Securities Payments to Be Held in Trust. ------------------------------------------------- If the Company, a Subsidiary or any of their respective Affiliates shall at any time act as the Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of (or premium, if any) or interest, if any, on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal (and premium, if any) and interest, if any, 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 in writing 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, prior to each due date of the principal of (or premium, if any) or interest, if any, on any Securities of that series, and any appurtenant coupons, deposit with the appropriate Paying Agent a sum sufficient to pay such amount so becoming due, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee in writing of its action or failure so to act. The Company will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section 10.03, that such Paying Agent will (i) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent, (ii) give the Trustee notice in writing of any default by the Company (or any other obligor upon the Securities of such series) in the making of any payment of principal (and premium, if any) or interest, if any, on the Securities of such series and (iii) during the continuance of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment in respect of the Securities of that series and any appurtenant coupons, and upon the written request of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Securities of that series. The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture with respect to any series of Securities or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to - 73 - the Trustee all sums held in trust by the Company or such Paying Agent, in respect of each and every series of Securities as to which it seeks to discharge this Indenture or, if for any other purpose, all sums so held in trust by the Company in respect of all Securities, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money. Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of (or premium, if any) or interest, if any, on any Security of any series or any related coupons and remaining unclaimed for two years after such principal (or 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 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 a newspaper published in the English language, customarily published on each Business Day and of general circulation in the Borough of Manhattan, The City of New York, New York, 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 free of the trust formerly impressed upon it. SECTION 10.04. Purchase of Securities by Company or Subsidiary. ----------------------------------------------- If and so long as the Securities of a series are listed on The Stock Exchange of the United Kingdom and the Republic of Ireland and such stock exchange shall so require, the Company will not, and will not permit any Subsidiary to, purchase any Securities of that series by private treaty at a price (exclusive of expenses and accrued interest) which exceeds 120% of the mean of the nominal quotations of the Securities of that series as shown in The Stock Exchange Daily Official List for the last trading day preceding the date of purchase. SECTION 10.05. Payment of Additional Amounts. ----------------------------- If the Securities of a series provide for the payment of amounts in addition to principal, premium or interest ("additional amounts"), the Company will pay to the Holder of any security of any such series or any coupon appertaining thereto additional amounts upon the terms and subject to the conditions provided therein. Whenever in this Indenture there is mentioned, in any context, the payment of the principal of (or premium, if any) or interest, if any, on, or in respect of, any Security of any series, 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 the terms of such Securities and this Section 10.05 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. - 74 - 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 any, 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 Paying Agent or Paying Agents, if other than the Trustee, with an Officer's Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal of (and premium, if any) or interest, if any, on the Securities of that series shall be made to Holders of Securities of that series or the 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, if any, required by the terms of such Securities and the first paragraph of this Section 10.05. The Company covenants to indemnity 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 10.05. SECTION 10.06. Statement by Officers as to Default. ----------------------------------- (a) Each obligor upon the Securities (including the Company) will deliver to the Trustee, within 120 days after the end of each fiscal year of the Company ending after the date hereof, a certificate from each such obligor's principal executive officer, principal financial officer or principal accounting officer, stating that 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 whether or not to the best knowledge of the signer(s) thereof such obligor is in default in the performance and observance of any of the terms, conditions and covenants of this Indenture (without regard to any period of grace or requirement of notice provided hereunder), and if such obligor shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge. (b) The Company shall deliver to the Trustee as soon as possible, and in any event within five days after the Company becomes aware of the occurrence of any Event of Default, an Officers' Certificate specifying such Event of Default, the period of existence thereof and what action the Company is taking or proposes to take with respect thereto. SECTION 10.07. Existence. --------- Subject to Article Eight, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its legal existence. - 75 - ARTICLE ELEVEN REDEMPTION OF SECURITIES SECTION 11.01. Applicability of Article. ------------------------ The Company may reserve the right to redeem and pay before Stated Maturity all or any part of the Securities of any series, either by optional redemption, sinking or purchase fund or analogous obligation or otherwise, by provision therefor in the form of Security for such series established and approved pursuant to Article Two and Article Three and on such terms as are specified in such form or in the indenture supplemental hereto provided in Section 3.01. Redemption of Securities of any series shall be made in accordance with the terms of such Securities and, to the extent that this Article does not conflict with such terms, the succeeding Sections of this Article. SECTION 11.02. Election to Redeem; Notice to Trustee. ------------------------------------- The election of the Company to redeem any Securities redeemable at the election of the Company shall be evidenced by, or pursuant to authority granted by a Board Resolution. 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 of such Redemption Date, of the principal amount of Securities of such series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture or 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 11.03. Selection by Trustee of Securities to Be Redeemed. ------------------------------------------------- If less than all the Securities of like tenor and terms of any series (a "Tranche") are to be redeemed, the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such Tranche not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may include provision for the election for redemption of portions of the principal of Securities of such Tranche of a denomination larger than the minimum authorized denomination for Securities of that series. Unless otherwise provided in the terms of a particular series of Securities, the portions of the principal of Securities so selected for partial redemption shall be equal to the minimum authorized denomination of the Securities of such series, or an integral multiple thereof, and the principal amount which remains outstanding shall not be less than the minimum authorized denomination for Securities of such series. If less than all the Securities of unlike tenor and terms of a series are to be redeemed, the particular Tranche of Securities to be redeemed shall be selected by the Company. - 76 - The Trustee shall promptly notify the Company in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed. For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed. SECTION 11.04. Notice of Redemption. -------------------- Notice of redemption shall be given 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: (1) the Redemption Date, (2) the Redemption Price, (3) if less than all the Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption of any Securities, the principal amounts) of the particular Securities to be redeemed, (4) that, on the Redemption Date, the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date, (5) the Place or Places of Payment where such Securities, together in the case of Bearer Securities with all coupons appertaining thereto, if any, maturing after the Redemption Date, are to be surrendered for payment of the Redemption Price and accrued interest, if any, (6) that the redemption is on account of a sinking fund, purchase fund or other obligation, if such is the case, (7) that Bearer Securities may be surrendered for payment only at such place or places outside of the United States, except as otherwise specified in Section 10.02 and unless otherwise specified in such notice, Bearer Securities of any series, if any, surrendered for redemption must be accompanied by all coupons maturing subsequent to the date fixed for redemption or the amount of any such missing coupon or coupons will be deducted from the Redemption Price, unless security or indemnity satisfactory to the Company, the Trustee for such series and any Paying Agent is furnished, - 77 - (8) if Bearer Securities of any series are to be redeemed and any Registered Securities of such series are not to be redeemed, and if such Bearer Securities may be exchanged for Registered Securities not subject to redemption on the Redemption Date pursuant to Section 3.05 or otherwise, the last date, as determined by the Company, on which such exchanges may be made, and (9) the CUSIP number of such Security, if any. Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company's request, by the Trustee in the name and at the expense of the Company. Failure to give such notice to the Holder of any Security or any defect in such notice given to the Holder of any Security shall not affect the validity of the proceedings for any other Security or part thereof. SECTION 11.05. Deposit of Redemption Price. --------------------------- On or prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.03) an amount of money in the Currency in which such Securities are payable sufficient to pay the Redemption Price of all the Securities which are to be redeemed on that date; provided that such amount shall be so deposited with the Trustee or Paying Agent in time for the Trustee or the Paying Agent, as the case may be, to pay such Redemption Price in accordance with its normal procedures. SECTION 11.06. Securities Payable on Redemption Date. ------------------------------------- Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price; provided, however, that installments of interest on Bearer Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable only upon presentation and surrender of coupons for such interest (at an office or agency located outside the United States except as otherwise provided in Section 10.02) and provided further, that, unless otherwise specified in Section 3.01, 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 Registered Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant 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 Bearer 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 - 78 - 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 Redemption 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 upon presentation and surrender of those coupons at an office or agency located outside of the United States except as otherwise provided in Section 10.02. If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security. SECTION 11.07. Securities Redeemed in Part. --------------------------- Any Registered Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Registered Security or Securities of the same series and Stated Maturity and of like tenor and terms, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered. ARTICLE TWELVE SINKING FUNDS SECTION 12.01. 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. SECTION 12.02. Provisions with Respect to any Sinking Funds. -------------------------------------------- Unless the form or terms of any series of Securities shall provide otherwise, in lieu of making all or any part of any mandatory sinking fund payment with respect to such series of Securities in cash, the Company may at its option (1) deliver to the Trustee for cancellation any Securities of such series theretofore acquired by the Company, or (2) receive credit for any Securities of such series (not previously so credited) acquired by the Company (including by way of optional redemption (pursuant to the sinking fund or otherwise) but not by way of mandatory sinking fund redemption) and theretofore - 79 - delivered to the Trustee for cancellation, and if it does so then (i) Securities so delivered or credited shall be credited at the applicable sinking fund Redemption Price with respect to Securities of such series, and (ii) on or before the 60th day next preceding each sinking fund Redemption Date with respect to such series of Securities, the Company will deliver to the Trustee (A) an Officers' Certificate specifying the portions of such sinking fund payment to be satisfied by payment of cash and by delivery or credit of Securities of such series acquired by the Company, and (B) such Securities, to the extent not previously surrendered. Such Officers' Certificate shall also state the basis for such credit and that the Securities for which the Company elects to receive credit have not been previously so credited and were not acquired by the Company through operation of the mandatory sinking fund, if any, provided with respect to such Securities and shall also state that no Event of Default with respect to Securities of such series has occurred and is continuing. All Securities so delivered to the Trustee shall be cancelled by the Trustee and no Securities shall be authenticated in lieu thereof. If the sinking fund payment or payments (mandatory or optional) with respect to any series of Securities made in cash plus any unused balance of any preceding sinking fund payments with respect to Securities of such series made in cash shall exceed $50,000 (or a lesser sum if the Company shall so request), unless otherwise provided by the terms of such series of Securities, that cash shall be applied by the Trustee on the sinking fund Redemption Date with respect to Securities of such series next following the date of such payment to the redemption of Securities of such series at the applicable sinking fund Redemption Price with respect to Securities of such series, together with accrued interest, if any, to the date fixed for redemption, with the effect provided in Section 11.06. The Trustee shall select, in the manner provided in Section 11.03, for redemption on such sinking fund Redemption Date a sufficient principal amount of Securities of such series to utilize that cash and shall thereupon cause notice of redemption of the Securities of such series for the sinking fund to be given in the manner provided in Section 11.04 (and with the effect provided in Section 11.06) for the redemption of Securities in part at the option of the Company. Any sinking fund moneys not so applied or allocated by the Trustee to the redemption of Securities of such series shall be added to the next cash sinking fund payment with respect to Securities of such series received by the Trustee and, together with such payment, shall be applied in accordance with the provisions of this Section 12.02. Any and all sinking fund moneys with respect to Securities of any series held by the Trustee at the Maturity of Securities of such series, and not held for the payment or redemption of particular Securities of such series, shall be applied by the Trustee, together with other moneys, if necessary, to be deposited sufficient for the purpose, to the payment of the principal of the Securities of such series at Maturity. On or before such sinking fund Redemption Date provided with respect to Securities of any series, the Company shall deposit with the Trustee cash in a sum equal to all accrued interest, if any, to the date fixed for redemption on Securities to be redeemed on such sinking fund Redemption Date pursuant to this Section 12.02; provided that such cash shall be so deposited with the Trustee in time for the Trustee to make the payment of such accrued interest in accordance with its normal procedures. ARTICLE THIRTEEN REPAYMENT AT THE OPTION OF HOLDERS - 80 - SECTION 13.01. 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 13.02. 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, unless otherwise provided in its terms, be repaid at the applicable Repayment Price together with interest accrued to such Repayment Date as specified pursuant to Section 3.01. SECTION 13.03. 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 10.02. 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 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 10.02. 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, 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. - 81 - 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 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 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 in part, to the portion of the principal of such Security which has been or is to be repaid. SECTION 13.04. 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 Date, Securities of such series from the Holders thereof who give notice and surrender their Securities in accordance with Section 13.03. SECTION 13.05. 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 13.04, 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 borne by such Securities from time to time until payment in full of such principal amount. ARTICLE FOURTEEN MEETINGS OF HOLDERS OF SECURITIES SECTION 14.01. Purposes for which Meetings May be Called. ----------------------------------------- - 82 - 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 14.02. Call, Notice and Place of Meetings. ---------------------------------- (a) 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 14.01, to be held at such time and at such place in the Borough of Manhattan, the City of New York, the City of San Francisco, California 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 no more than 180 days prior to the date fixed for the meeting. (b) 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 14.01, 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 Borough of Manhattan, the City of New York, the City of San Francisco, California or in London for such meeting and may call such meeting for such purposes by giving notice thereof as provided in subsection (a) of this Section. SECTION 14.03. 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 14.04. 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 which this Indenture expressly provides may be given by the Holders of not less than 66 2/3% in - 83 - principal amount of the Outstanding Securities of a series, the Persons entitled to vote 66 2/3% 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 this reconvening of any adjourned meeting shall be given as provided in Section 14.02(a), 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 proviso 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 that series, provided, however, that, except as limited by the proviso 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 not less than 66 2/3% 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 66 2/3% in principal amount of the Outstanding Securities of that series; and provided, further, that, except as limited by the proviso 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 14.05. Determination of Voting Rights; Conduct and ------------------------------------------- Adjournment of Meetings. ----------------------- (a) Notwithstanding any other provisions of this Indenture, the Company 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 - 84 - 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 14.02(b), 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 $1.00 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 14.02 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 a meeting; and the meeting may be held as so adjourned without further notice. SECTION 14.06. 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 vote 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 14.02 and, if applicable, Section 14.01. 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 - 85 - 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 FIFTEEN DEFEASANCE AND COVENANT DEFEASANCE SECTION 15.01. Company's Option to Effect Defeasance or Covenant Defeasance. ------------------------------------------------------------ The Company may elect, at its option by Board Resolution at any time, to have either Section 15.02 or Section 15.03 applied to the Outstanding Securities of any series designated pursuant to Section 3.01 as being defeasible, and any related coupon, pursuant to this Article Fifteen (hereinafter called a "Defeasible Series"), upon compliance with the conditions set forth below in this Article Fifteen. SECTION 15.02. Defeasance and Discharge. ------------------------ Upon the Company's exercise of the option provided in Section 15.01 to have this Section 15.02 applied to the Outstanding Securities of any Defeasible Series, the Company shall be deemed to have been discharged from its obligations with respect to the Outstanding Securities of such series and any related coupons as provided in this Section on and after the date the conditions set forth in Section 15.04 are satisfied (hereinafter called "Defeasance"). For this purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the Outstanding Securities of such series and to have satisfied all its other obligations under the Securities of such series and this Indenture insofar as the Securities of such series are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), subject to the following which shall survive until otherwise terminated or discharged hereunder: (1) the rights of Holders of Securities of such series to receive, solely from the trust fund described in Section 15.04 and as more fully set forth in such Section, payments in respect of the principal of (and premium, if any) and interest, if any, on such Securities of such series when payments are due, (2) the Company's obligations with respect to the Securities of such series under Sections 3.04, 3.05, 3.06, 10.02, 10.03 and any additional amounts under Section 10.05, (3) the rights, powers, trusts, duties and immunities of the Trustee hereunder including, but not limited to, pursuant to Section 6.07 and (4) this Article Fifteen. Subject to compliance with this Article Fifteen, the Company may exercise its option provided in Section 15.01 to have this Section 15.02 applied to the Outstanding Securities of any Defeasible Series notwithstanding the prior exercise of its option provided in Section 15.01 to have Section 15.03 applied to the Outstanding Securities of such series and any related coupons. SECTION 15.03. Covenant Defeasance. ------------------- Upon the Company's exercise of the option provided in Section 15.01 to have this Section 15.03 applied to the Outstanding Securities of any Defeasible Series and any related coupons, (1) the Company shall be released from its obligations under Sections 8.01 and 10.07 and (2) the occurrence of any event - 86 - specified in Sections 5.01(3), 5.01(4) (with respect to Sections 8.01 and 10.07) and 5.01(8) shall be deemed not to be or result in an Event of Default, in each case with respect to the Outstanding Securities of such series as provided in this Section 15.03 on and after the date the conditions set forth in Section 15.04 are satisfied (hereinafter called "Covenant Defeasance"). For this purpose, such Covenant Defeasance means that the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such specified Section (to the extent so specified in the case of Section 5.01(4)), whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other provision herein or in any other document, but the remainder of this Indenture and the Securities of such series shall be unaffected thereby. SECTION 15.04. Conditions to Defeasance or Covenant Defeasance. ----------------------------------------------- The following shall be the conditions to application of either Section 15.02 or Section 15.03 to the Outstanding Securities of any Defeasible Series: (1) The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee that satisfies the requirements contemplated by Section 6.09 and agrees to comply with the provisions of this Article Fifteen applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of Outstanding Securities of such series, (A) money in an amount (in such Currency in which such Securities and any coupons appertaining thereto are then specified as payable at Stated Maturity), (B) U.S. Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (C) a combination thereof, in each case sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or any such other qualifying Trustee) to pay and discharge, the principal of (and premium, if any) and interest, if any, on the Securities of such series on the respective Stated Maturities, in accordance with the terms of this Indenture and the Securities of such series. (2) In the case of an election under Section 15.02, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the date first set forth hereinabove, there has been a change in the applicable Federal income tax law, in either case (A) or (B) to the effect that, and based thereon such opinion shall confirm that, the Holders of the Outstanding Securities of such series will not recognize gain or loss for Federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to the Securities of such series and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit, Defeasance and discharge were not to occur. - 87 - (3) In the case of an election under Section 15.03, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the Outstanding Securities of such series will not recognize gain or loss for Federal income tax purposes as result of the deposit and Covenant Defeasance to be effected with respect to the Securities of such series and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur. (4) The Company shall have delivered to the Trustee an Officers' Certificate to the effect that the Securities of such series, if then listed on any securities exchange, will not be delisted as a result of such deposit. (5) No Event of Default or event that (after notice, or lapse of time, or both) would become an Event of Default shall have occurred and be continuing at the time of such deposit or, with regard to any Event of Default or any such event specified in Sections 5.01 (6) and (7), at any time on or prior to the 90th day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 90th day). (6) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act. (7) Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Company is a party or by which it is bound. (8) Such Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act of 1940, as amended, unless such trust shall be qualified or exempt from regulation thereunder. (9) The Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with. SECTION 15.05. Deposited Money and U.S. Government Obligations to be ----------------------------------------------------- Held In Trust, Other Miscellaneous Provisions. --------------------------------------------- Subject to the provisions of the last paragraph of Section 10.03, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying trustee (solely for purposes of this Section 15.05 and Section 15.06, the Trustee and any such other trustee are referred to collectively as the "Trustee") pursuant to Section 15.04 in respect of the Securities of any Defeasible Series and any related coupons shall be held in trust and applied by the Trustee, in accordance with the provisions of the Securities and the related coupons, if any, of such series and this Indenture, to the payment, either directly or through any such Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the - 88 - Holders of Securities of such series, of all sums due and to become due thereon in respect of principal and any premium and interest, but money so held in trust need not be segregated from other funds except to the extent required by law. Unless otherwise specified with respect to any Security pursuant to Section 3.01, if, after a deposit referred to in Section 15.04(a) has been made, (a) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.12(b) or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 15.04(a) has been made in respect of such Security, or (b) a Conversion Event occurs as contemplated in Section 3.12(d) or 3.12(e) or by the terms of any Security in respect of which the deposit pursuant to Section 15.04(a) has been made, the indebtedness represented by such Security and any coupons appertaining thereto shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any) and interest, if any, on such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on the applicable Market Exchange Rate for such Currency in effect on the second Business Day prior to each payment date, except, with respect to a Conversion Event, for such Currency in effect (as nearly as feasible) at the time of the Conversion Event. The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 15.04 or the principal and interest received in respect thereof other than any such tax, fee or other charge that by law is for the account of the Holders of Outstanding Securities. Anything in this Article Fifteen to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or U.S. Government Obligations held by it as provided in Section 15.04 with respect to Securities of any Defeasible Series that, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Defeasance or Covenant Defeasance with respect to the Securities of such series. SECTION 15.06. Reinstatement. ------------- If the Trustee or the Paying Agent is unable to apply any money in accordance with this Article Fifteen with respect to the Securities of any series by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company's obligations under this Indenture and the Securities of such series shall be revived and reinstated as though no deposit had occurred pursuant to this Article Fifteen with respect to Securities of such series until such time as the Trustee or Paying Agent is permitted to apply all money held in trust pursuant to Section 15.05 with respect to Securities of such series in accordance with this Article Fifteen; provided, however, that if the Company makes any payment of principal of (or premium, if any) or interest, if any on - 89 - any Security of such series following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of Securities of such series to recover such payment from the money so held in trust. ARTICLE SIXTEEN SUBORDINATION OF SECURITIES SECTION 16.01. Securities Subordinate to Senior Indebtedness. --------------------------------------------- The Company covenants and agrees, and each Holder of a Security by such Holder's acceptance thereof likewise covenants and agrees, that, to the extent and in the manner hereinafter set forth in this Article Sixteen, the indebtedness represented by the Securities and the payment of the principal of (and premium, if any) and interest, if any, in respect of each and all of the Securities are hereby expressly made subordinate and subject in right of payment to the prior payment in full of all Senior Indebtedness. SECTION 16.02. Payment Over of Proceeds upon Dissolution, Etc. ---------------------------------------------- Upon any distribution of assets of the Company in the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative to the Company or to its creditors, as such, or to its assets, or (b) any liquidation, dissolution or other winding up of the Company, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or any other marshalling of assets and liabilities of the Company, then and in such event (1) the holders of Senior Indebtedness shall be entitled to receive payment in full of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in cash, before the Holders of any series of the Securities are entitled to receive any payment on account of the principal (and premium, if any), or interest, if any, in respect of the Securities of that series; and (2) any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, by set-off or otherwise, to which the Holders or the Trustee would be entitled but for the provisions of this Article Sixteen, 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 any series 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 - 90 - 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 according to the aggregate amounts remaining unpaid on account of the principal of (and premium, if any) and interest, if any, 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. In the event that, notwithstanding the foregoing provisions of this Section 16.02, the Trustee or the Holder of any Security of a series shall receive 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 subordinated to the payment of the Securities of that series, before all Senior Indebtedness is paid in full or payment thereof provided for, and if such fact shall then have been made known to the Trustee, or such Holder, as the case may be, then and in such event 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 application to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness. For purposes of this Article Sixteen only, the words "cash, property or securities" shall not be deemed to include shares of Capital Stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinated, at least to the extent provided in this Article Sixteen with respect to the Securities of the applicable series, to the payment of all Senior Indebtedness which may at the time be outstanding; provided, however, that (i) Senior Indebtedness is assumed by the new corporation, if any, resulting from any such reorganization or readjustment, and (ii) the rights of the holders of the Senior Indebtedness are not, without the consent of such holders, altered by such reorganization or readjustment. The consolidation of the Company with, or the merger of the Company into, another person or the liquidation or dissolution of the Company following the conveyance or transfer of all or substantially all of its assets to another Person upon the terms and conditions set forth in Article Eight shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company for the purposes of this Section 16.02 if the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer all or substantially all of the assets of the Company, as the case may be, shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions set forth in Article Eight. SECTION 16.03. Default on Senior Indebtedness. ------------------------------ - 91 - The Company may not make any payment of the principal (and premium, if any) or interest, if any, in respect of a series of the Securities and may not acquire any Securities of that series for cash or property if: (1) a Senior Indebtedness Default shall have happened and shall not have been cured or waived or shall not have ceased to exist, or (2) such payment in respect of the Securities of that series would, immediately after giving effect thereto, result in a Senior Indebtedness Default. In the event that, notwithstanding the foregoing, the Company shall make any payment to the Trustee or the Holder of any Security prohibited by the foregoing provisions of this Section 16.03, and if such fact then shall have been known or thereafter shall have been made known to the Trustee or such Holder, as the case may be, pursuant to the terms of this Indenture, then except as hereinafter provided, unless and until any such Senior Indebtedness Default shall have been cured or waived or shall cease to exist, such payment shall be paid over to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instrument evidencing the Senior Indebtedness may have been issued, as their respective interests may appear, to the extent necessary to pay in full all Senior Indebtedness then due, after giving effect to any concurrent payment to the holders of such Senior Indebtedness. Unless and until written notice shall be given to the Trustee by or on behalf of any holder of Senior Indebtedness notifying it of the existence of one or more of the circumstances described in clause (1) or (2), above, the Trustee shall be entitled to assume that no such circumstances exist. Notwithstanding the existence of any one or more of such circumstances, nothing in this Article Sixteen or elsewhere in this Indenture shall prevent the Trustee from applying, for the purposes for which the same were received, any moneys that may at any time be received by the Trustee in trust pursuant to any provision of this Indenture, if (x) in the case of a redemption of Securities, the Trustee shall not have received, prior to the giving of notice of such redemption, written notice from or on behalf of any holder of any Senior Indebtedness of the existence of one or more of the circumstances described in clause (1) or (2), above, or (y) in the case of a deposit for the purpose of any other payment to Holders, the Trustee shall not have received, at least ten days prior to the date on which such payment is to be made, written notice from or on behalf of any holder of any Senior Indebtedness of the existence of one or more of such circumstances. The provisions of this Section 16.03 shall not apply to any payment with respect to which Section 16.02 would be applicable. SECTION 16.04 Prior Payment to Senior Indebtedness Upon Acceleration ------------------------------------------------------ of Securities. ------------- In the event that any Securities are declared due and payable before their Stated Maturity, then and in such event the holders of the Senior Indebtedness - 92 - shall be entitled to receive payment in full of all amounts due on or in respect of all Senior Indebtedness before the Holders of such Securities shall be entitled to receive any payment (including any payment which may be payable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securities) by the Company on account of the principal of (or premium, if any) or interest, if any, on the Securities or on account of the purchase or other acquisition of Securities of any series. In the event that, notwithstanding the foregoing, the Company shall make any payment to the Trustee or the Holder of any Security prohibited by the foregoing provisions of this Section 16.04, and if such fact then shall have been made known, or thereafter shall have been made known, to the Trustee or such Holder, as the case may be, pursuant to the terms of this Indenture, then except as hereinafter provided, such payment shall be paid over and delivered forthwith to the Company. The provisions of this Section shall not apply to any payment with respect to which Section 16.02 would be applicable. SECTION 16.05. Payment Permitted if No Default. ------------------------------- Nothing contained in this Article Sixteen or elsewhere in this Indenture or in any of the Securities of a series shall prevent (a) the Company, at any time except during the pendency of any case, proceeding, dissolution, liquidation or other winding up, assignment for the benefit of creditors or other marshalling of assets and liabilities of the Company referred to in Section 16.02 or under the conditions described in Section 16.02, 16.03 or 16.04, from making payments at any time of the principal (and premium, if any), or interest, if any, as the case may be, in respect of the Securities of that series, or (b) the application by the Trustee or the retention by any Holder of any money deposited with it hereunder to the payment of or on account of the principal (and premium, if any), or interest, if any, as the case may be, in respect of the Securities of that series if the Trustee did not have, at the time provided in the proviso to the first paragraph of Section 16.10, notice that such payment would have been prohibited by the provisions of this Article Sixteen. SECTION 16.06. Subrogation to Rights of Holders of Senior Indebtedness. ------------------------------------------------------- Subject to the payment in full of all Senior Indebtedness, the Holders of the Securities of a series shall be subrogated to the extent of the payments or distributions made to the holders of such Senior Indebtedness pursuant to the provisions of this Article Sixteen to the rights of the holders of such Senior Indebtedness to receive payments or distributions of cash, property or securities applicable to the Senior Indebtedness until the principal (and premium, if any) or interest, if any, as the case may be, in respect of the Securities of that series shall be paid in full. For purposes of such subrogation, no payments or distributions to the holders of the Senior Indebtedness of any cash, property or securities to which the Holders of the Securities of that series or the Trustee would be entitled except for the provisions of this Article Sixteen, and no payments pursuant to the provisions of this Article Sixteen to the Company or to the holders of Senior Indebtedness by Holders of the Securities of that series or the Trustee, shall, as between the Company, its creditors other than holders of Senior Indebtedness and the - 93 - Holders of the Securities of that series, be deemed to be a payment or distribution by the Company to or on account of the Senior Indebtedness. SECTION 16.07. Provisions Solely to Define Relative Rights. ------------------------------------------- The provisions of this Article Sixteen are and are intended solely for the purpose of defining the relative rights of the Holders of the Securities of each series, on one hand, and the holders of Senior Indebtedness, on the other hand. Nothing contained in this Article Sixteen or elsewhere in this Indenture or in the Securities of a series is intended to or shall: (a) impair, as between the Company and the Holders of the Securities of that series, the obligation of the Company, which is absolute and unconditional, to pay to the Holders of the Securities of that series the principal (and premium, if any) and interest, if any, as the case may be, in respect of the Securities of that series as and when the same shall become due and payable in accordance with the terms of the Securities of that series and this Indenture and which, subject to the rights under this Article Sixteen of the holders of Senior Indebtedness, is intended to rank equally with all other general obligations of the Company; or (b) affect the relative rights against the Company of the Holders of the Securities of that series and creditors of the Company, other than holders of Senior Indebtedness; or (c) prevent the Trustee or the Holder of any Security of that series from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article Sixteen of the holders of Senior Indebtedness to receive cash, property or securities otherwise payable or deliverable to the Trustee or such Holder. SECTION 16.08. Trustee to Effectuate Subordination. ----------------------------------- Each Holder of a Security by such Holder's acceptance thereof authorizes and directs the Trustee on such Holder's behalf to take such action as may be necessary or appropriate to effectuate the subordination provided for in this Article Sixteen and appoints the Trustee such Holder's attorney-in-fact for any and all such purposes. SECTION 16.09. No Waiver of Subordination Provisions. ------------------------------------- No right of any present or future holder of any Senior Indebtedness to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the Company with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof any such holder may have or be otherwise charged with. - 94 - Without in any way limiting the generality of the foregoing paragraph, the holders of Senior Indebtedness may, at any time and, from time to time, without the consent of, or notice to, the Trustee or the Holders of the Securities of that series, without incurring responsibility to the Holders of the Securities of that series and without impairing or releasing the subordination provided in this Article Sixteen or the obligations hereunder of the Holders of the Securities of that series to the holders of such Senior Indebtedness, do any one or more of the following: (i) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, Senior Indebtedness, or otherwise amend or supplement in any manner Senior Indebtedness or any instrument evidencing the same or any agreement under which Senior Indebtedness is outstanding; (ii) sell, exchange, release or otherwise dispose of any property pledged, mortgaged or otherwise securing Senior Indebtedness; (iii) release any person liable in any manner for the collection of Senior Indebtedness; and (iv) exercise or refrain from exercising any rights against the Company or any other Person. SECTION 16.10. Notice to Trustee. ----------------- The Company shall give prompt written notice to the Trustee of any fact known to the Company which would prohibit the making of any payment to or by the Trustee in respect of the Securities of a series. Failure to give such notice shall not affect the subordination of the Securities of that series to Senior Indebtedness. Notwithstanding the provisions of this Article Sixteen or any other provision of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts which would prohibit the making of any payment to or by the Trustee in respect of the Securities of a series, unless and until the Trustee shall have received written notice thereof at the address specified in Section 1.05 from the Company or a holder of Senior Indebtedness or from any trustee or agent therefor; and, prior to the receipt of any such written notice, the Trustee, subject to the provisions of Article Six, shall be entitled in all respects to assume that no such facts exist; provided, however, that if a Trust Officer of the Trustee shall not have received, at least five Business Days prior to the date upon which by the terms hereof any such money may become payable for any purpose (including, without limitation, the payment of the principal (and premium, if any), or interest, if any, as the case may be, in respect of any Security of that series), the notice with respect to such money provided for in this Section 16.10, then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such money and to apply the same to the purpose for which such money was received and shall not be affected by any notice to the contrary which may be received by it within five Business Days prior to such date. Subject to the provisions of Article Six, the Trustee shall be entitled to rely on the delivery to it of a written notice by a person representing himself to be a holder of Senior Indebtedness (or a trustee or agent on behalf of such holder) to establish that such notice has been given by a holder of Senior Indebtedness (or a trustee or agent on behalf of any such holder). In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Article Sixteen, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such person, the extent to which such person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article Sixteen, and if such evidence is not furnished, the - 95 - Trustee may defer any payment which it may be required to make for the benefit of such Person pursuant to the terms of this Indenture pending judicial determination as to the right of such person to receive such payment. SECTION 16.11. Reliance on Judicial Order or Certificate of Liquidating Agent. -------------------------------------------------------------- Upon any payment or distribution of assets of the Company referred to in this Article Sixteen, the Trustee, subject to the provisions of Article Six, and the Holders of the Securities of a series shall be entitled to rely upon any order or decree entered by any court of competent jurisdiction in which such insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution, winding up or similar case or proceeding is pending, or a certificate of the trustee in bankruptcy, liquidating trustee, custodian, receiver, assignee for the benefit of creditors, agent or other person making such payment or distribution, delivered to the Trustee or to the Holders of Securities of that series, for the purpose of ascertaining the persons entitled to participate in such payment or distribution, the holders of Senior Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article Sixteen. SECTION 16.12. Trustee Not Fiduciary for Holders of Senior Indebtedness. -------------------------------------------------------- The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and shall not be liable to any such holders if the Trustee shall in good faith mistakenly pay over or distribute to Holders of Securities of that series or to the Company or to any other Person cash, property or securities to which any holders of Senior Indebtedness of that series shall be entitled by virtue of this Article Sixteen or otherwise. The Trustee shall not be charged with knowledge of the existence of Senior Indebtedness or of any facts that would prohibit any payment hereunder unless a Trust Officer of the Trustee shall have received notice to that effect at the address of the Trustee set forth in Section 1.05. With respect to the holders of Senior Indebtedness, the Trustee undertakes to perform or to observe only such of its covenants or obligations as are specifically set forth in this Article Sixteen and no implied covenants or obligations with respect to holders of Senior Indebtedness shall be read into this Indenture against the Trustee. SECTION 16.13. Rights of Trustee as Holder of Senior Indebtedness; -------------------------------------------------- Preservation of Trustee's Rights. -------------------------------- The Trustee or any Authenticating Agent in its individual capacity shall be entitled to all the rights set forth in this Article Sixteen with respect to any Senior Indebtedness which may at any time be held by it, to the same extent as any other holder of Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of its rights as such holder. Nothing in this Article Sixteen shall apply to claims of, or payments to, the Trustee under or pursuant to Section 6.07. SECTION 16.14. Article Sixteen Applicable to Paying Agents. ------------------------------------------- - 96 - In case at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term "Trustee" as used in this Article Sixteen shall in such case (unless the context otherwise requires) be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named in this Article Sixteen in addition to or in place of the Trustee; provided, however, that Sections 16.10 and 16.12 shall not apply to the Company or any Affiliate of the Company if it or such Affiliate acts as Paying Agent. ARTICLE SEVENTEEN CONVERSION OF SECURITIES SECTION 17.01. Conversion Privilege and Conversion Price. ----------------------------------------- If the Securities of a series are convertible, which shall be specified in the manner contemplated in Section 3.01, and upon compliance with the provisions of this Article, at the option of the Holder thereof, any Security or any portion of the principal amount thereof may be converted into fully paid and nonassessable shares of Common Stock of the Company, at the conversion price in effect at the time of conversion. The periods within which or the dates on which, the prices at which and the terms and conditions upon which Securities may be so converted shall be specified in the manner contemplated by Section 3.01. In case a Security or portion thereof is called for redemption or is repurchased, such conversion right in respect of the Security or portion so called shall expire at the close of business on the Redemption Date or the repurchase date, unless the Company defaults in making the payment due upon redemption or repurchase. In case the Company shall, by dividend or otherwise, declare or make a distribution on its Common Stock referred to in paragraph (4) or (5) of Section 17.04, the Holder of each Security, upon the conversion thereof pursuant to this Article subsequent to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution and prior to the effectiveness of the conversion price adjustment in respect of such distribution pursuant to paragraph (4) or (5) of Section 17.04, shall also be entitled to receive for each share of Common Stock into which such Security is converted, the portion of the evidences of indebtedness, shares of Capital Stock, cash and assets so distributed applicable to one share of Common Stock, provided that, at the election of the Company (whose election shall be evidenced by a Board Resolution) with respect to all Holders so converting, the Company may, in lieu of distributing to such Holder any portion of such distribution not consisting of cash or securities of the Company, pay such Holder an amount in cash equal to the fair market value thereof (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution). If any conversion of a Security described in the immediately preceding sentence occurs prior to the payment date for a distribution to holders of Common Stock that the Holder of the Security so converted is entitled to receive in accordance with the immediately preceding sentence, the Company may elect (such election to be evidenced by a Board Resolution) to distribute to such Holder a due bill for the evidences of indebtedness, shares of Capital - 97 - Stock, cash or assets to which such Holder is so entitled, provided that such due bill (i) meets any applicable requirements of the principal national securities exchange or other market on which the Common Stock is then traded and (ii) requires payment or delivery of such evidences of indebtedness, shares of Capital Stock, cash or assets no later than the date of payment or delivery thereof to holders of Common Stock receiving such distribution. SECTION 17.02. Exercise of Conversion Privilege. -------------------------------- In order to exercise the conversion privilege referred to in this Article 17, the Holder of any Security to be converted shall surrender such Security, duly endorsed or assigned to the Company or in blank in the case of Registered Securities, together in the case of Bearer Securities with all matured coupons and any unmatured coupons in default appertaining thereto, at any office or agency of the Company maintained for that purpose pursuant to Section 10.02, accompanied by written notice to the Company at such office or agency that the Holder elects to convert such Security or, if less than the entire principal amount thereof is to be converted, the portion thereof to be converted. Registered Securities surrendered for conversion during the period from the close of business on any Regular Record Date next preceding any Interest Payment Date to the opening of business on such Interest Payment Date shall (except in the case of Registered Securities or portions thereof that have been called for redemption, or are to be repurchased, on such Interest Payment Date or a Redemption Date or a repurchase date within the period beginning on such Regular Record Date and ending on such Interest Payment Date) be accompanied by payment by wire transfer or certified check or other funds acceptable to the Company of an amount equal to the interest payable on such Interest Payment Date on the principal amount of the Registered Security then being converted. Except as provided in the preceding sentence and subject to the last paragraph of Section 3.07, no payment or adjustment shall be made upon any conversion on account of any interest accrued on the securities surrendered for conversion or on account of any dividends on the Common Stock issued upon conversion. Securities shall be deemed to have been converted immediately prior to the close of business on the day of surrender of such Securities for conversion in accordance with the foregoing provisions, and at such time the rights of the Holders of such Securities as Holders shall cease, and the person or persons entitled to receive the Common Stock issuable upon conversion shall be treated for all purposes as the record holder or holders of such Common Stock at such time. As promptly as practicable on or after the conversion date, the Company shall issue and shall deliver at such office or agency a certificate or certificates for the number of full shares of Common Stock issuable upon conversion, together with payment in lieu of any fraction of a share, as provided in Section 17.03. In the case of any Security that is converted in part only, upon such conversion the Company shall execute and the Trustee shall authenticate and deliver to the Holder thereof, at the expense of the Company, a new Security or Securities of authorized denominations in aggregate principal amount equal to the unconverted portion of the principal amount of such Security, along with any coupons appertaining thereto, if applicable. - 98 - SECTION 17.03. Fractions of Shares. ------------------- No fractional shares of Common Stock shall be issued upon conversion of Securities. If more than one Security shall be surrendered for conversion at one time by the same Holder, the number of full shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate principal amount of the Securities (or, in the case of Registered Securities, specified portions thereof) so surrendered. Instead of any fractional share of Common Stock that would otherwise be issuable upon conversion of any Security or Securities (or, in the case of Registered Securities, specified portions thereof), the Company shall pay a cash adjustment in respect of such fraction in an amount equal to the same fraction of the Closing Price at the close of business on the date of conversion. SECTION 17.04. Adjustment of Conversion Price. ------------------------------ (1) In case the Company shall pay or make a dividend or other distribution on its Common Stock exclusively in stock or shall pay or make a dividend or other distribution on any other class of Capital Stock of the Company which dividend or distribution includes Common Stock, the conversion price in effect at the opening of business on the day following the day fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. (2) Subject to the last sentence of paragraph (7) of this Section, in case the Company shall pay or make a dividend or other distribution on its Common Stock consisting exclusively of, or shall otherwise issue to all holders of its Common Stock, rights or warrants entitling the holders thereof to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights or warrants, the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on - 99 - the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall not issue any rights or warrants in respect of shares of Common Stock held in the treasury of the Company. (3) In the event that outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in the event that outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective. (4) Subject to the last sentence of this paragraph (4), in the event that the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of Capital Stock, cash or assets (including securities, but excluding any rights or warrants referred to in paragraph (2) of this Section, excluding any dividend or distribution paid exclusively in cash and excluding any dividend or distribution referred to in paragraph (1) of this section), the conversion price shall be reduced to be equal to the price determined by multiplying the conversion price in effect immediately prior to the effectiveness of the conversion price reduction contemplated by this paragraph (4) by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date of such effectiveness less the fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), on the date of such effectiveness of the portion of the evidences of indebtedness, shares of Capital Stock, cash and assets so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such reduction to become effective immediately prior to the opening of business on the day following the later of (a) the date fixed for the payment of such distribution and (b) the date 20 days after the notice relating to such distribution is given pursuant to Section 17.06(a) (such later date of (a) and (b) being referred to as the "Reference Date"). If the Board of Directors determines the fair market value of any distribution for purposes of this paragraph (4) by reference to the actual or when issued trading market for any securities comprising such distribution, it must in doing so consider the prices in such market over the same period used in computing the current market price per share pursuant to paragraph (8) of this Section. For purposes of this paragraph (4), any dividend or distribution that includes shares of Common Stock, rights or warrants to - 100 - subscribe for or purchase shares of Common Stock or other securities convertible into or exchangeable for shares of Common Stock shall be deemed instead to be (a) a dividend or distribution of the evidences of indebtedness, cash, assets or shares of Capital Stock other than such shares of Common Stock, such rights or warrants or such other convertible or exchangeable securities (making any conversion price reduction subject to this paragraph (4)), immediately followed by (b) in the case of such shares of Common Stock or such rights or warrants, a dividend or distribution thereof (making any further conversion price reduction subject to paragraph (1) or (2) of this Section, except (i) the Reference Date of such dividend or distribution as defined in this paragraph (4) shall be substituted for "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraphs (1) and (2) of this Section and (ii) any shares of Common Stock included in such dividend or distribution shall not be deemed "outstanding at the close of business on the date fixed for such determination" within the meaning of paragraph (1) of this Section) or (c) in the case of such other convertible or exchangeable securities, a dividend or distribution of such number of shares of Common Stock as would then be issuable upon the conversion or exchange thereof, whether or not the conversion or exchange of such securities is subject to any conditions (making any further conversion price reduction subject to paragraph (1) of this Section, except (i) the Reference Date of such dividend or distribution as defined in this paragraph (4) shall be substituted as "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" and (ii) the shares deemed to constitute such dividend or distribution shall not be deemed "outstanding at the close of business on the date fixed for such determination", each within the meaning of paragraph (1) of this Section). (5) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (excluding any cash that is distributed as part of a distribution referred to in paragraph (4) of this Section) in an aggregate amount that, together with (i) the aggregate amount of any other distributions to all holders of its Common Stock made exclusively in cash within the 12 months preceding the date of payment of such distribution and in respect of which no conversion price adjustment pursuant to this paragraph (5) or paragraph (6) below has been made and (ii) the aggregate of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of any other consideration payable in respect of any tender offer by the Company or a subsidiary for all or any portion of the Company's Common Stock concluded within the 12 months preceding the date of payment of such distribution and in respect of which no conversion price adjustment pursuant to paragraph (8) of this Section has been made, exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for stockholders entitled to receive such distribution, times the number of shares of Common Stock outstanding on such date, the conversion price shall be reduced so that the same shall equal the price determined by multiplying the conversion price in effect immediately prior to the effectiveness of the conversion price reduction contemplated by this paragraph (5) by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date of such effectiveness less the amount of cash so - 101 - distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such reduction to become effective immediately prior to the opening of business on the later of (a) the day following the date fixed for the payment of such distribution and (b) the date 20 days after the notice relating to such distribution is given pursuant to Section 17.06 (if such notice is required to be given). (6) In the event that a tender offer made by the Company or any Subsidiary for all or any portion of the Company's Common Stock shall expire and such tender offer shall involve an aggregate consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) on the last time (the "Expiration Time") tenders may be made pursuant to such tender offer (as it may be amended) that, together with (i) the aggregate amount of cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of any other consideration payable in respect of any tender offer by the Company or a Subsidiary for all or any portion of the Company's Common Stock expiring within the 12 months preceding the expiration of such tender offer and in respect of which no conversion price adjustment pursuant to this paragraph (6) or paragraph (5) above has been made and (ii) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 12 months preceding the expiration of such tender offer and in respect of which no conversion price adjustment pursuant to paragraph (5) of this Section has been made exceeds 5% of the product of the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock at the Expiration Time multiplied by the number of shares of Common Stock outstanding (including any tendered shares) at the Expiration Time, the conversion price shall be reduced so that the same shall equal the price determined by multiplying the conversion price in effect immediately prior to the Expiration Time by a fraction of which the numerator shall be (i) the product of the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock at the Expiration Time multiplied by the number of shares of Common Stock outstanding (including any tendered shares) at the Expiration Time minus (ii) the fair market value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the "Purchased Shares") and the denominator shall be the product of (i) such current market price per share at the Expiration Time multiplied by (ii) such number of outstanding shares at the Expiration Time less the number of Purchased Shares, such reduction to become effective immediately prior to the opening of business on the day following the Expiration Time. No such adjustment shall be made in the event of any purchase pursuant to Rule 10b-18 under the Exchange Act. (7) The reclassification of Common Stock into any security or securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 17.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common - 102 - Stock (and the effective date of such reclassification shall be deemed to be the "Reference Date" within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective", or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this Section). Rights or warrants issued by the Company to all holders of its Common Stock entitling the holders thereof to subscribe for or purchase shares of Common Stock or preferred stock of the Company, which rights or warrants (i) are deemed to be transferred with such shares of Common Stock, (ii) are not exercisable and (iii) are also issued in respect of future issuance of Common Stock, in the case of each of clauses (i) through (iii), until the occurrence of a specified event or events ("Trigger Event"), shall for purposes of this Section 17.04 not be deemed issued and the distribution thereof not be deemed made or paid until the occurrence of the earliest Trigger Event. (8) For the purpose of any computation under this paragraph and paragraphs (2), (4) and (5) of this Section, the current market price per share of Common Stock on any date shall be deemed to be the average of the Closing Prices for the five consecutive Trading Days selected by the Company commencing not more than 20 Trading Days before, and ending not later than, the date in question; provided, that such market price shall be appropriately adjusted by the Board (which adjustment shall be conclusive and shall be evidenced by a Board Resolution) to take into account the occurrence, during the period commencing on the first of such Trading Days during such five Trading Days period and ending on the date in question, of any event that requires an adjustment in the conversion price under this Section 17.04. For the purpose of any computation under paragraph (6) of this Section, the current market price per share of Common Stock on any date shall be deemed to be the average of the daily Closing Prices for the five consecutive Trading Days selected by the Company commencing on or after the latest of the date (any such date, the "Commencement Date") (i) - 103 - 20 Trading Days before the date in question, (ii) of commencement of the tender offer requiring such computation and (iii) of the last amendment, if any, of such tender offer involving a change in the maximum number of shares for which tenders are sought or a change in the consideration offered, and ending not later than the Expiration Time of such tender offer; provided, however, that such market price shall be appropriately adjusted by the Board (which adjustment shall be conclusive and shall be evidenced by a Board Resolution) to take into account the occurrence, during the period commencing on the first of such Trading Days during such five Trading Day period and ending on the date in question, of any event that requires an adjustment in the conversion price under this Section 17.04. (9) The Company may make such reductions in the conversion price, in addition to those required by this Section, as it considers to be advisable in order that any event treated for Federal income tax purposes as a dividend of stock or stock rights shall not be taxable to the recipients. (10) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least 1% in the conversion price; provided, however, that any adjustments which by reason of this paragraph (10) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. (11) Notwithstanding any other provision of this Section 17.04, no adjustment to the conversion price shall (unless permitted by New Jersey law) reduce the conversion price below the then par value per share of the Common Stock, and any such purported adjustment shall instead reduce the conversion price to such par value. The Company hereby covenants not to take any action that would or does result in any adjustment in the conversion price that, if made without giving effect to the previous sentence, would cause the conversion price to be less than the then par value per share of the Common Stock, unless such action is permitted by New Jersey law. (12) If all of the shares of the Common Stock issuable upon exercise or conversion of such rights, warrants or options have not been issued when such rights, warrants or options expire, then the conversion price shall promptly be readjusted to the conversion price which would then be in effect had the adjustment upon the issuance of such rights, warrants or options been made on the basis of the actual number of shares of Common Stock issued upon the exercise of such rights, warrants or options. SECTION 17.05. Notice of Adjustments of Conversion Price. ----------------------------------------- Whenever the conversion prices are adjusted as herein provided and at such other times as the Trustee shall request: - 104 - (a) the Company shall compute the adjusted conversion price in accordance with Section 17.04 and shall prepare a certificate signed by the Chief Financial Officer of the Company setting forth the adjusted conversion price and showing in reasonable detail the facts upon which such adjustment is based, and such certificate shall forthwith be delivered to the Trustee and filed at each office or agency maintained for the purpose of conversion of Securities pursuant to Section 10.02. The certificate shall be conclusive evidence that the adjustment is correct. The Trustee shall not be under any duty or responsibility with respect to any such certificate except to exhibit the same to any Holder desiring inspection thereof; and (b) a notice stating that the conversion price has been adjusted and setting forth the adjusted conversion price shall forthwith be required, and, when the conversion price is adjusted, as soon as practicable after it is required, the Company shall cause such notice to be mailed to all Holders of Registered Securities at their last address as they shall appear in the Security Register. SECTION 17.06 Notice of Certain Corporate Action. ---------------------------------- In the event: (a) that the Company shall declare a dividend (or any other distribution) on its Common Stock; or (b) that the Company shall authorize the granting to the holders of its Common Stock generally of rights or warrants to subscribe for or purchase any shares of Capital Stock of any class or of any other rights; or (c) of the occurrence of any reclassification of the Common Stock of the Company (other than a subdivision or combination of the outstanding shares of Common Stock), or of any consolidation or merger to which the Company is a party and for which approval of any stockholders of the Company is required, or of the sale or transfer of all or substantially all of the assets of the Company; or (d) of the voluntary or involuntary dissolution, liquidation or winding up of the Company; or (e) that the Company or any Subsidiary shall commence a tender offer for all or a portion of the Company's outstanding shares of Common Stock (or shall amend any such tender offer); then the Company shall notify the Trustee and cause to be filed at each office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02, and shall cause to be mailed to all Holders of Registered Securities at their last addresses as they shall appear in the Security Register, at least 20 days (or 10 days in any case specified in clause (a) or (b) above) prior to the applicable record date hereinafter specified, a notice - 105 - stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, rights or warrants, or, if a record is not to be taken, the date as of which the holders of Common Stock of record to be entitled to such dividend, distribution, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding up is expected to become effective, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their shares of Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding up, or (z) the date on which such tender offer commenced, the date on which such tender offer is scheduled to expire unless extended, the consideration offered and the other material terms thereof (or the material terms of any amendment thereto). SECTION 17.07. Company to Reserve Common Stock. ------------------------------- The Company shall at all times reserve and keep available, free from preemptive rights, out of its authorized but unissued Common Stock, for the purpose of effecting the conversion of Securities, the full number of shares of Common Stock then issuable upon the conversion of all outstanding Securities. SECTION 17.08. Taxes on Conversions. -------------------- The Company will pay any and all taxes, other than any franchise or income taxes, that may be payable in respect of the issue or delivery of shares of Common Stock on conversion of Securities pursuant hereto. The Company shall not, however, be required to pay any tax that may be payable in respect of any transfer involved in the issue and delivery of shares of Common Stock in a name other than that of the Holder of the Security or Securities to be converted, and no such issue or delivery shall be made unless and until the person requesting such issue has paid to the Company the amount of any such tax, or has established to the satisfaction of the Company that such tax has been paid. SECTION 17.09. Covenant as to Common Stock. --------------------------- The Company covenants that all shares of Common Stock that may be issued upon conversion of Securities will upon issue be fully paid and nonassessable and, except as provided in Section 17.08, the Company will pay all taxes, liens and charges with respect to the issue thereof. SECTION 17.10. Cancellation of Converted Securities, etc. ----------------------------------------- All Securities delivered for conversion shall be delivered to the Trustee to be canceled by or at the direction of the Trustee, which shall dispose of the same as provided in Section 3.10. SECTION 17.11. Provision in the Case of Consolidation, Merger or ------------------------------------------------- Sales of Assets. --------------- - 106 - In the event of any consolidation of the Company with, or merger of the Company into, any other corporation, or in the event of any merger of another corporation into the Company (other than a merger which does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock of the Company), or in the event of any sale or transfer of all or substantially all of the assets of the Company, the corporation formed by such consolidation or resulting from such merger or which acquires such assets, as the case may be, shall execute and deliver to the Trustee a supplemental indenture providing that the Holder of each Security then outstanding shall have the right thereafter, during the period such Security shall be convertible as specified in Section 17.01, to convert such Security only into the kind and amount of securities, cash and other property receivable upon such consolidation, merger, sale or transfer by a holder of the number of shares of Common Stock of the Company into which such Security might have been converted immediately prior to such consolidation, merger, sale or transfer, assuming such holder of Common Stock of the Company failed to exercise its rights of election, if any, as to the kind or amount of securities, cash and other property receivable upon such consolidation, merger, sale or transfer (provided that if the kind or amount of securities, cash and other property receivable upon such consolidation, merger, sale or transfer is not the same for each share of Common Stock in respect of which such rights of election shall not have been exercised ("non-electing share"), then for the purpose of this Section, the kind and amount of securities, cash and other property receivable upon such consolidation, merger, sale or transfer by each non-electing share shall be deemed to be the kind and amount so receivable per share by a plurality of the non-electing shares). Such supplemental indenture shall provide for adjustments which, for events subsequent to the effective date of such supplemental indenture, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Article. The above provisions of this Section shall similarly apply to successive consolidations, mergers, sales or transfers. SECTION 17.12. Trustee's Adjustment Disclaimer. ------------------------------- The Trustee has no duty to determine when an adjustment under this Article 17 should be made, how it should be made or what it should be. The Trustee has no duty to determine whether a supplemental indenture under Section 17.11 need be entered into or whether any provisions of any supplemental indenture are correct. The Trustee shall not be accountable for and makes no representation as to the validity or value of any securities or assets issued upon conversion of Securities. The Trustee shall not be responsible for the Company's failure to comply with this Article 17. - 107 - 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. BERGEN BRUNSWIG CORPORATION By: _____________________________ Attest: ______________________________ CHEMICAL TRUST COMPANY OF CALIFORNIA, as Trustee By: _____________________________ Attest: ______________________________ - 108 - STATE OF CALIFORNIA COUNTY OF ORANGE On the ______ day of ____________, 1996, before me personally came _______ ___________________, to me known, who, being by me duly sworn, did depose and say that he resides at ______________, California and that he is _____________ of Bergen Brunswig Corporation, one of the corporations described in and which executed the foregoing instrument; and that he signed his name thereto by authority of the board of directors of Bergen Brunswig Corporation. _______________________________ Notary Public _______________________________ (Notarial Seal) - 109 - STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO On the ______ day of ____________, 1996, before me personally came _______ ___________________, to me known, who, being by me duly sworn, did depose and say that he resides at ______________, California and that he is _____________ of Chemical Trust Company of California, one of the parties described in and which executed the above instrument; and that he signed his name thereto by authority of the Board of Directors of Chemical Trust Company of California. _______________________________ Notary Public _______________________________ (Notarial Seal) - 110 - FORMS OF CERTIFICATION EXHIBIT A-1 FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE CERTIFICATE [Insert title or sufficient description of Securities to be delivered] This is to certify that, as of the date hereof, and except as set forth below, the above-captioned Securities held by you for our account (i) are owned by person(s) that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject to United States federal income taxation regardless of its source ("United States person(s)"), (ii) are owned by United States Person(s) that are (a) foreign branches of United States financial Institutions (financial institutions, as defined in United States Treasury Regulations Section 1.16512(c)(1)(v) are herein referred to as "financial institutions") purchasing for their own account or for resale, or (b) United States person(s) who acquired the Securities through foreign branches of United States financial institutions and who hold the Securities through such United States financial institutions on the date hereof (and in either case (a) or (b), each such United States financial institution hereby agrees, on its own behalf or through its agent, that you may advise Bergen Brunswig Corporation, or its agent that such financial institution will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the United States Internal Revenue Codes of 1986, as amended, and the regulations thereunder), or (iii) are owned by United States or foreign financial institution(s) for purposes of resale during the restricted period (as defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7), and, in addition, if the owner is a United States or foreign financial institution described in clause (iii) above (whether or not also described in clause (i) or (ii)), this is to further certify that such financial institution has not acquired the Securities for purposes of resale directly or indirectly to a United States person or to a person within the United States. As used herein, "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 (including the Commonwealth of Puerto Rico). We undertake to advise you promptly by tested telex on or prior to the date on which you intend to submit your certification relating to the above-captioned Securities held by you for our account in accordance with your Operating Procedures if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certification applies as of such date. This certificate excepts and does not relate to [U.S.$] ______________ of such interest in the above-captioned Securities in respect of which we are not A-1-1 able to certify and as to which we understand an exchange for an interest in a permanent Global Security or an exchange for and delivery of definitive Securities (or, if relevant, collection of any interest) cannot be made until we do so certify. We understand that this certificate may be 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 the 15th day prior to (i) the Exchange Date or (ii) the relevant Interest Payment Date occurring prior to the Exchange Date, as applicable] [Name of Person Making Certification] _______________________________ (Authorized Signatory) Name: Title: A-1-2 EXHIBIT A-2 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 OR TO OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE CERTIFICATE [Insert title or sufficient description of Securities to be delivered] This is to certify that, based solely on written certifications that we have received in writing, by tested telex or by electronic transmission from each of the persons appearing in our records as persons entitled to a portion of the principal amount set forth below (our "Member Organizations") substantially in the form attached hereto, as of the date hereof, [U.S.$]_________ principal amount of the above-captioned Securities (i) is owned by person(s) that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject to United States Federal income taxation regardless of its source ("United States person(s)"), (ii) is owned by United States person(s) that are (a) foreign branches of United States financial institutions (financial institutions, as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v) are herein referred to as "financial institutions") purchasing for their own account or for resale, or (b) United States person(s) who acquired the Securities through foreign branches of United States financial institutions and who hold the Securities through such United States financial institutions on the date hereof (and in either case (a) or (b), each such financial institution has agreed, on its own behalf or through its agent, that we may advise Bergen Brunswig Corporation or its agent that such financial institution will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is owned by United States or foreign financial institution(s) for purposes of resale during the restricted period (as defined in United States Treasury Regulations Section 1.163.5(c)(2)(i)(D)(7)), and, to the further effect, that financial institutions described in clause (iii) above (whether or not also described in clause (i) or (ii)) have certified that they have not acquired the Securities for purposes of resale directly or indirectly to a United States person or to a person within the United States. As used herein, "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 (including the Commonwealth of Puerto Rico). We further certify that (i) we are not making available herewith for exchange (or, if relevant, collection of any interest) any portion of the temporary Global Security representing the above-captioned Securities excepted in the above-referenced certificates of Member Organizations and (ii) as of the date hereof we have not received any notification from any of our Member A-2-1 Organizations to the effect that the statements made by such Member Organizations with respect to any portion of the part submitted herewith for exchange (or, if relevant, collection of any interest) are no longer true and cannot be relied upon as of the date hereof. We understand that this certification 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 the Exchange Date or the relevant Interest Payment Date occurring prior to the Exchange Date, as applicable] [Morgan Guaranty Trust Company of New York, Brussels Office,] as Operator of the Euroclear System [Cedal S.A.] By_______________________________ A-2-2 EX-4.6 4 FORM OF INDENTURE FOR LYONS BETWEEN BERGEN BRUNSWIG CORPORATION CHEMICAL TRUST COMPANY OF CALIFORNIA EXHIBIT 4.6 BERGEN BRUNSWIG CORPORATION Liquid Yield Option(TM) Notes due _____ (Zero Coupon-Subordinated) ________________________________ Indenture Dated as of ___________, 199___ ________________________________ CHEMICAL TRUST COMPANY OF CALIFORNIA, as Trustee (TM)Trademark of Merrill Lynch & Co., Inc. CROSS REFERENCE TABLE(1) TIA Indenture Section Section - ------- --------- 310(a)(1) .................................................. 7.10 (a)(2) .................................................. 7.10 (a)(3) .................................................. N.A (a)(4) .................................................. N.A (a)(5) .................................................. 7.10 (b) .................................................. 7.08; 7.10 (c) .................................................. N.A 311(a) .................................................. 7.11 (b) .................................................. 7.11 (c) .................................................. N.A 312(a) .................................................. 2.05 (b) .................................................. 12.03 (c) .................................................. 12.03 313(a) .................................................. 7.06 (b) .................................................. 7.06 (c) .................................................. 12.02 (d) .................................................. 7.06 314(a) .................................................. 4.02;4.03;12.02 (b) .................................................. N.A (c)(1) .................................................. 12.04 (c)(2) .................................................. 12.04 (c)(3) .................................................. N.A. (d) .................................................. N.A. (e) .................................................. 12.05 (f) .................................................. 4.04 315(a) .................................................. 7.01 (b) .................................................. 7.05; 12.02 (c) .................................................. 7.01 (d) .................................................. 7.01 (e) .................................................. 6.11 316(a) (last sentence)...................................... 2.08 (a)(1)(A)................................................ 6.05 (a)(1)(B)................................................ 6.04 (a)(2) .................................................. N.A. (b) .................................................. 6.07 (c) .................................................. 2.12 317(a)(1) .................................................. 6.08 - ------------------ (1) This Cross Reference Table shall not, for any purpose, be deemed to be part of the Indenture. (a)(2) .................................................. 6.09 (b) .................................................. 2.04 318(a) .................................................. 12.01 N.A. means Not Applicable. TABLE OF CONTENTS(2) Page ---- ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE SECTION 1.01 Definitions.............................................. 1 SECTION 1.02 Other Definitions........................................ 5 SECTION 1.03 Incorporation by Reference of Trust Indenture Act........ 5 SECTION 1.04 Rules of Construction.................................... 6 ARTICLE 2 THE SECURITIES SECTION 2.01 Form and Dating.......................................... 6 SECTION 2.02 Execution and Authentication............................. 6 SECTION 2.03 Registrar, Paying Agent and Conversion Agent............. 7 SECTION 2.04 Paying Agent to Hold Money and Securities in Trust....... 8 SECTION 2.05 Securityholder Lists..................................... 8 SECTION 2.06 Transfer and Exchange.................................... 8 SECTION 2.07 Replacement Securities................................... 9 SECTION 2.08 Outstanding Securities; Determinations of Holders' Action 9 SECTION 2.09 Temporary Securities..................................... 10 SECTION 2.10 Cancellation............................................. 11 SECTION 2.11 Persons Deemed Owners.................................... 11 SECTION 2.12 Acts of Holders.......................................... 11 ARTICLE 3 REDEMPTION AND PURCHASES SECTION 3.01 Right to Redeem; Notices to Trustee...................... 12 SECTION 3.02 Selection of Securities to Be Redeemed................... 13 SECTION 3.03 Notice of Redemption..................................... 13 SECTION 3.04 Effect of Notice of Redemption........................... 14 SECTION 3.05 Deposit of Redemption Price.............................. 14 SECTION 3.06 Securities Redeemed in Part.............................. 14 SECTION 3.07 Conversion Arrangement on Call for Redemption............ 14 - -------------------------- (2) This Table of Contents shall not, for any purpose, be deemed to be part of the Indenture. - i - SECTION 3.08 Purchase of Securities at Option of the Holder........... 15 SECTION 3.09 Effect of Purchase Notice................................ 22 SECTION 3.10 Deposit of Purchase Price................................ 22 SECTION 3.11 Securities Purchased in Part............................. 23 SECTION 3.12 Covenant to Comply with Securities Laws Upon Purchase of Securities............................ 23 SECTION 3.13 Repayment to the Company................................. 23 SECTION 3.14 CUSIP Numbers............................................ 23 ARTICLE 4 COVENANTS SECTION 4.01 Payment of Securities.................................... 24 SECTION 4.02 SEC Reports.............................................. 24 SECTION 4.03 Compliance Certificate................................... 24 SECTION 4.04 Further Instruments and Acts............................. 24 SECTION 4.05 Maintenance of Office or Agency.......................... 24 ARTICLE 5 SUCCESSOR CORPORATION SECTION 5.01 When Company May Merge or Transfer Assets................ 25 ARTICLE 6 DEFAULTS AND REMEDIES SECTION 6.01 Events of Default........................................ 26 SECTION 6.02 Acceleration............................................. 27 SECTION 6.03 Other Remedies........................................... 27 SECTION 6.04 Waiver of Past Defaults.................................. 28 SECTION 6.05 Control by Majority...................................... 28 SECTION 6.06 Limitation on Suits...................................... 28 SECTION 6.07 Rights of Holders to Receive Payment..................... 29 SECTION 6.08 Collection Suit by Trustee............................... 29 SECTION 6.09 Trustee May File Proofs of Claim......................... 29 SECTION 6.10 Priorities............................................... 30 SECTION 6.11 Undertaking for Costs.................................... 30 SECTION 6.12 Waiver of Stay, Extension or Usury Laws.................. 30 ARTICLE 7 TRUSTEE SECTION 7.01 Duties of Trustee........................................ 31 - ii - SECTION 7.02 Rights of Trustee........................................ 32 SECTION 7.03 Individual Rights of Trustee............................. 32 SECTION 7.04 Trustee's Disclaimer..................................... 33 SECTION 7.05 Notice of Defaults....................................... 33 SECTION 7.06 Reports by Trustee to Holders............................ 33 SECTION 7.07 Compensation and Indemnity............................... 33 SECTION 7.08 Replacement of Trustee................................... 34 SECTION 7.09 Successor Trustee by Merger.............................. 35 SECTION 7.10 Eligibility; Disqualification............................ 35 SECTION 7.11 Preferential Collection of Claims Against Company........ 35 ARTICLE 8 DISCHARGE OF INDENTURE SECTION 8.01 Discharge of Liability on Securities..................... 36 SECTION 8.02 Repayment to the Company................................. 36 ARTICLE 9 AMENDMENTS SECTION 9.01 Without Consent of Holders............................... 36 SECTION 9.02 With Consent of Holders.................................. 37 SECTION 9.03 Compliance with Trust Indenture Act...................... 38 SECTION 9.04 Revocation and Effect of Consents, Waivers and Actions... 38 SECTION 9.05 Notation on or Exchange of Securities.................... 38 SECTION 9.06 Trustee to Sign Supplemental Indentures.................. 39 SECTION 9.07 Effect of Supplemental Indentures........................ 39 ARTICLE 10 SUBORDINATION SECTION 10.01 Securities Subordinate to Senior Indebtedness........... 39 SECTION 10.02 Payment Over of Proceeds upon Dissolution, Etc.......... 40 SECTION 10.03 Acceleration of Securities.............................. 41 SECTION 10.04 Default on Senior Indebtedness.......................... 42 SECTION 10.05 Payment Permitted if no Default......................... 43 SECTION 10.06 Subrogation to Rights of Holders of Senior Indebtedness. 43 SECTION 10.07 Provisions Solely to Define Relative Rights............. 43 SECTION 10.08 Trustee to Effectuate Subordination..................... 44 SECTION 10.09 No Waiver of Subordination Provisions................... 44 SECTION 10.10 Notice to Trustee....................................... 44 - iii - SECTION 10.11 Reliance on Judicial Order or Certificate of Liquidating Agent.................................. 45 SECTION 10.12 Trustee Not Fiduciary for Holders of Senior Indebtedness 45 SECTION 10.13 Rights of Trustee as Holder of Senior Indebtedness; Preservation of Trustee's Rights...................... 46 SECTION 10.14 Article 10 Applicable to Paying Agents.................. 46 ARTICLE 11 CONVERSION SECTION 11.01 Conversion Privilege.................................... 46 SECTION 11.02 Conversion Procedure.................................... 48 SECTION 11.03 Fractional Shares....................................... 48 SECTION 11.04 Taxes on Conversion..................................... 49 SECTION 11.05 Company to Provide Stock................................ 49 SECTION 11.06 Adjustment for Change in Capital Stock.................. 49 SECTION 11.07 Adjustment for Rights Issue............................. 50 SECTION 11.08 Adjustment for Other Distributions...................... 51 SECTION 11.09 When Adjustment May Be Deferred........................ 54 SECTION 11.10 When No Adjustment Required............................. 54 SECTION 11.11 Notice of Adjustment.................................... 54 SECTION 11.12 Voluntary Increase...................................... 54 SECTION 11.13 Notice of Certain Transactions.......................... 55 SECTION 11.14 Reorganization of Company; Special Distributions........ 56 SECTION 11.15 Company Determination Final............................. 56 SECTION 11.16 Trustee's Adjustment Disclaimer......................... 56 SECTION 11.17 Simultaneous Adjustments................................ 56 SECTION 11.18 Successive Adjustments.................................. 56 SECTION 11.19 Rights Issued in Respect of Class A Common Stock Issued Upon Conversion................... 56 ARTICLE 12 MISCELLANEOUS SECTION 12.01 Trust Indenture Act Controls............................ 57 SECTION 12.02 Notices................................................. 57 SECTION 12.03 Communication by Holders with Other Holders............. 58 SECTION 12.04 Certificate and Opinion as to Conditions Precedent...... 58 SECTION 12.05 Statements Required in Certificate or Opinion........... 58 SECTION 12.06 Separability Clause..................................... 59 SECTION 12.07 Rules by Trustee, Paying Agent, Conversion Agent and Registrar................................... 59 SECTION 12.08 Legal Holidays.......................................... 59 - iv - SECTION 12.09 Governing Law........................................... 59 SECTION 12.10 No Recourse Against Others.............................. 59 SECTION 12.11 Successors.............................................. 59 SECTION 12.12 Multiple Originals...................................... 59 EXHIBIT A - Form of Security - v - THIS INDENTURE, dated as of ____________________, 199__, is between BERGEN BRUNSWIG CORPORATION, a New Jersey corporation (the "Company"), and CHEMICAL TRUST COMPANY OF CALIFORNIA, as trustee (the "Trustee"). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Company's Liquid Yield Option(TM) Notes due _____ (Zero Coupon - Subordinated) (the "Securities"): ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE SECTION 1.01. Definitions. "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, partnerships or other ownership interests, by contract or otherwise; and the terms ''controlling" and "controlled" have meanings correlative to the foregoing. "Board of Directors" means either the board of directors of the Company or any duly authorized committee of such board or any committee of officers of the Company acting pursuant to authority granted by such board or any committee of such board. "Business Day" means each day of the year on which banking institutions are not required or authorized to close in the City of New York or at the principal corporate trust office of the Trustee. "Capital Stock" for any corporation means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) capital stock issued by that corporation. "Company" means the party named as the "Company" in the first paragraph of this Indenture until a successor replaces it pursuant to the applicable provisions of this Indenture and, thereafter, shall mean such successor. The foregoing sentence shall likewise apply to any subsequent such successor or successors. "Company Request" or "Company Order" means a written request or order signed in the name of the Company by its Chairman of the Board, its President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee. - --------------------------- (TM) Trademark of Merrill Lynch & Co., Inc. "Debt" means with respect to any person at any date, without duplication, (i) all obligations of such person for borrowed money, (ii) all obligations of such person evidenced by bonds, debentures, notes or other similar instruments, (iii) all Debt of others secured by a lien on any asset of such person, whether or not such Debt is assumed by such person, (iv) all obligations of such person pursuant to capitalized leases, (v) all Debt of others for the payment of which such person is responsible or liable as obligor or guarantor and (vi) all obligations of such person with respect to letters of credit or bankers' acceptances issued for the account of such person or with respect to interest rate protection agreements or currency exchange or purchase agreements and (vii) all obligations of such person issued or assumed as the deferred purchase price of property, all conditional sale obligations of such person and all obligations of such person under any title retention agreement. "Default" means any event which is, or after notice or passage of time or both would be, an Event of Default. "Event of Default" means the events defined as "Events of Default" in Section 6.01. "Holder" or "Securityholder" means a person in whose name a Security is registered on the Registrar's books. "Indenture" means this Indenture, as amended or supplemented from time to time in accordance with the terms hereof. "Issue Date" of any Security means the date on which the Security was originally issued or deemed issued as set forth on the face of the Security. "Issue Price" of any Security means, in connection with the original issuance of such Security, the initial issue price at which the Security is sold as set forth on the face of the Security. "Officer" means the Chairman, the President, any Vice President, the Treasurer or the Secretary or any Assistant Treasurer or Assistant Secretary of the Company. "Officers' Certificate" means a written certificate containing the information specified in Sections 12.04 and 12.05, signed in the name of the Company by its Chairman, its President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee. "Opinion of Counsel" means a written opinion containing the information specified in Sections 12.04 and 12.05, from legal counsel who is acceptable to the Trustee. The counsel may be an employee of, or counsel to, the Company or the Trustee. "Original Issue Discount" of any Security means the difference between the Issue Price and the Principal Amount of the Security as set forth on the face of the Security. "person" means any individual, corporation, partnership, limited liability company, joint venture, association, joint stock company, trust, unincorporated organization, or government or any agency or political subdivision thereof. - 2 - "Principal" or "Principal Amount" of a Security means the principal amount due at the Stated Maturity of the Security as set forth on the face of the Security. "Redemption Date" or "redemption date" shall mean the date specified for redemption of the Securities in accordance with the terms of the Securities and this Indenture. "Redemption Price" or "redemption price" shall have the meaning set forth in paragraph 5 of the Securities. "SEC" means the Securities and Exchange Commission. "Securities" means any of the Company's Liquid Yield Option(TM) Notes due _____ (Zero Coupon-Subordinated), as amended or supplemented from time to time in accordance with the terms hereof, issued under this Indenture. "Securityholder" or "Holder" means a person in whose name a Security is registered on the Registrar's books. "Stated Maturity", when used with respect to any Security, means the date specified in such Security as the fixed date on which the Principal of such Security is due and payable. "Subsidiary" means a corporation of which a majority of the Capital Stock having voting power under ordinary circumstances to elect a majority of the board of directors of such corporation is directly or indirectly owned by (i) the Company, (ii) the Company and one or more Subsidiaries or (iii) one or more Subsidiaries. "TIA" means the Trust Indenture Act of 1939, as amended, and as in affect on the date of this Indenture, except as provided in Section 9.03. "trading day" means a day during which trading in securities generally occurs on the New York Stock Exchange or, if the Class A Common Stock is not listed on the New York Stock Exchange, on the principal other national or regional securities exchange on which the Class A Common Stock is then listed or, if the Class A Common Stock is not listed on a national or regional securities exchange, on the National Association of Securities Dealers Automated Quotation System or, if the Class A Common Stock is not quoted on the National Association of Securities Dealers Automated Quotation System, on the principal other market on which the Class A Common Stock is then traded. "Trust Officer" means any officer of the Trustee assigned by the Trustee to administer its corporate trust matters. "Trustee" means the party named as the "Trustee" in the first paragraph of this Indenture until a successor replaces it pursuant to the applicable provisions of this Indenture and, thereafter, shall mean such successor. The foregoing sentence shall likewise apply to any subsequent such successor or successors. - 3 - SECTION 1.02. Other Definitions. Term Defined in ---- Section ---------- "Average Quoted Price"............................................ 11.01 "Bankruptcy Law".................................................. 6.01 "cash"............................................................ 3.08(b) "Class A Common Stock"............................................ 3.08(b) "Company Notice".................................................. 3.08(e) "Company Notice Date"............................................. 3.08(c) "Conversion Agent"................................................ 2.03 "Conversion Date"................................................. 11.02 "Conversion Rate"................................................. 11.01 "Custodian"....................................................... 6.01 "Event of Default"................................................ 6.01 "Exchange Act".................................................... 3.08(d) "Ex-Dividend Time"................................................ 11.01 "Extraordinary Cash Dividend"..................................... 11.08 "Legal Holiday"................................................... 12.08 "Market Price".................................................... 3.08(d) "Notice of Default"............................................... 6.01 "Over-Allotment Option"........................................... 2.02 "Pari Passu Debt"................................................. 10.01 "Paying Agent".................................................... 2.03 "Purchase Date"................................................... 3.08(a) "Purchase Notice"................................................. 3.08(a) "Purchase Price".................................................. 3.08(a) "Quoted Price".................................................... 11.01 "Registrar"....................................................... 2.03 "Rights".......................................................... 3.08(d) "Rights Agreement"................................................ 3.08(d) "Sale Price"...................................................... 3.08(d) "Securities Act".................................................. 3.08(d) "Senior Indebtedness"............................................. 10.01 "Time of Determination"........................................... 11.01 SECTION 1.03. Incorporation by Reference of Trust Indenture Act. Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings: "Commission'' means the SEC. - 4 - "indenture securities" means the Securities. "indenture security holder" means a Securityholder. "indenture to be qualified" means this Indenture. "indenture trustee" or "institutional trustee" means the Trustee. "obligor" on the indenture securities means the Company. All other TIA terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule have the meanings assigned to them by such definitions. SECTION 1.04. Rules of Construction. Unless the context otherwise requires: (1) a term has the meaning assigned to it; (2) an accounting term not otherwise defined has the meaning assigned to it in accordance with generally accepted accounting principles as in effect from time to time in the United States of America; (3) ''or'' is not exclusive; (4) "including" means including, without limitation; and (5) words in the singular include the plural, and words in the plural include the singular. ARTICLE 2 THE SECURITIES SECTION 2.01. Form and Dating. The Securities and the Trustee's certificate of authentication shall be substantially in the form of Exhibit A, which is a part of this Indenture. The Securities may have notations, legends or endorsements required by law, stock exchange rule or usage (provided that any such notation, legend or endorsement required by usage is in a form acceptable to the Company and the Trustee). The Company shall provide any such notations, legends or endorsements to the Trustee in writing. Each Security shall be dated the date of its authentication. SECTION 2.02. Execution and Authentication. The Securities shall be executed on behalf of the Company by its Chairman, its President or one of its Vice Presidents, under its corporate seal reproduced thereon and attested by its Secretary or one of its Assistant Secretaries. The signature of any of these officers on the Securities may be manual or facsimile. - 5 - Securities 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 Issue Date of such Securities. No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein duly 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. The Trustee shall authenticate and deliver Securities for original issue in an aggregate Principal Amount of up to $___,000,000 upon a Company Order without any further action by the Company; [provided, however, that in the event that the Company sells any Securities pursuant to the Underwriter's over-allotment option (the "Over-Allotment Option") granted pursuant to Section _____ of the Underwriting Agreement between the Company and __________ dated _____________, 199__, then the Trustee shall authenticate and deliver Securities for original issue in an aggregate Principal Amount of up to $___,000,000 plus up to $___,000,000 aggregate Principal Amount of Securities sold pursuant to the Over-Allotment Option upon a Company Order without any further action by the Company.] The aggregate Principal Amount of Securities outstanding at any time may not exceed the amount set forth in the foregoing sentence, subject to the proviso set forth therein, except as provided in Section 2.07. The Securities shall be issued only in registered form without coupons and only in denominations of $1,000 in Principal Amount and any integral multiple thereof. SECTION 2.03. Registrar, Paying Agent and Conversion Agent. The Company shall maintain an office or agency where Securities may be presented for registration of transfer or for exchange ("Registrar"), an office or agency where Securities may be presented for purchase or payment ("Paying Agent") and an office or agency where Securities may be presented for conversion ("Conversion Agent"). The Registrar shall keep a register of the Securities and of their transfer and exchange. The Company may have one or more co-registrars, one or more additional paying agents and one or more additional conversion agents. The term Paying Agent includes any additional paying agent. The term Conversion Agent includes any additional conversion agent. The Company shall enter into an appropriate agency agreement with any Registrar, Paying Agent, Conversion Agent or co-registrar (if not the Trustee). The agreement shall implement the provisions of this Indenture that relate to such agent. The Company shall notify the Trustee and the Holders of the name and address of any such agent and of any change in the office or agency referred to in Section 4.05. If the Company fails to maintain a Registrar, Paying Agent or Conversion Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 7.07. The Company or any Subsidiary or an Affiliate of either of them may act as Paying Agent, Registrar, Conversion Agent or co-registrar. - 6 - The Company initially appoints the Trustee as Registrar, Conversion Agent and Paying Agent in connection with the Securities. SECTION 2.04. Paying Agent to Hold Money and Securities in Trust. In accordance with Section 4.01 and except as otherwise provided herein, prior to or on each due date of payments in respect of any Security, the Company shall deposit with the Paying Agent a sum of money or, if permitted by the terms hereof, securities sufficient to make such payments when so becoming due. The Company shall require each Paying Agent (other than the Trustee) to agree in writing that the Paying Agent shall hold in trust for the benefit of Securityholders or the Trustee all money and securities held by the Paying Agent for the making of payments in respect of the Securities and shall notify the Trustee in writing of any default by the Company in making any such payment. At any time during the continuance of any such default, the Paying Agent shall, upon the written request of the Trustee, forthwith pay to the Trustee all money and securities so held in trust. If the Company, a Subsidiary or an Affiliate of either of them acts as Paying Agent, it shall segregate the money and securities held by it as Paying Agent and hold it as a separate trust fund. The Company at any time may require a Paying Agent to pay all money and securities held by it to the Trustee and to account for any funds and securities disbursed by it. Upon doing so, the Paying Agent shall have no further liability for the money or securities. SECTION 2.05. Securityholder Lists. The Trustee shall preserve in as current a form as is reasonably practicable, the most recent list available to it of the names and addresses of Securityholders. If the Trustee is not the Registrar, each obligor upon the Securities (including the Company) shall cause to be furnished to the Trustee at least semiannually on _________ and __________ a list containing all information in the possession or control of each such obligor, or any of its Paying Agents, as to the names and addresses of Holders dated within 15 days of the date on which the list is furnished and at such other times as the Trustee may request in writing a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Securityholders. SECTION 2.06. Transfer and Exchange. Upon surrender for registration of transfer of any Security, together with a written instrument of transfer satisfactory to the Trustee duly executed by the Securityholder or such Securityholder's attorney duly authorized in writing, at the office or agency of the Company designated as Registrar or co-registrar pursuant to Section 2.03 or at the office or agency referred to in Section 4.05, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of any authorized denomination or denominations, of a like aggregate Principal Amount. The Company shall not charge a service charge for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to pay all taxes, assessments or other governmental charges that may be imposed in connection with the transfer or exchange of the Securities from the Securityholder requesting such transfer or exchange. At the option of the Holder, Securities may be exchanged for other Securities of any authorized denomination or denominations, of a like aggregate Principal Amount, upon surrender of the Securities to be exchanged, together with a written instrument of transfer satisfactory to the Trustee duly executed by the Securityholder or such Securityholder's attorney duly authorized in - 7 - writing, 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. The Company shall not be required to make, and the Registrar need not register, transfers or exchanges of Securities selected for redemption (except, in the case of Securities to be redeemed in part, the portion thereof not to be redeemed) or any Securities in respect of which a Purchase Notice has been given and not withdrawn by the Holder thereof in accordance with the terms of this Indenture (except, in the case of Securities to be purchased in part, the portion thereof not to be purchased) or any Securities for a period of 15 days before a selection of Securities to be redeemed. SECTION 2.07. Replacement Securities. If (a) any mutilated Security is surrendered to the Trustee, or (b) the Company and the Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Security, and there is delivered to the Company and the Trustee such security or indemnity as may be required by them to save each of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon its written request the Trustee shall authenticate and deliver, in exchange for any such mutilated Security or in lieu of any such destroyed, lost or stolen Security, a new Security of like tenor and Principal Amount, bearing a number not contemporaneously outstanding. In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, or is about to be purchased by the Company pursuant to Article 3 hereof, the Company in its discretion may, instead of issuing a new Security, pay or purchase such Security, as the case may be. Upon the issuance of any new Securities 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 issued pursuant to this Section in lieu of any mutilated, destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and proportionately with any and all other Securities 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. SECTION 2.08. Outstanding Securities; Determinations of Holders' Action. Securities outstanding at any time are all the Securities authenticated by the Trustee except for those cancelled by it, those delivered to it for cancellation, those mutilated, destroyed, lost or stolen Securities for which - 8 - the Trustee has authenticated and delivered a new Security in lieu thereof or which have been paid pursuant to Section 2.07 and those described in this Section 2.08 as not outstanding. A Security does not cease to be outstanding because the Company or an Affiliate thereof holds the Security; provided, however, that in determining whether the Holders of the requisite Principal Amount of Securities have given or concurred in any request, demand, authorization, direction, notice, consent or waiver hereunder, 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 the Trustee knows to be so owned shall be so disregarded. Subject to the foregoing, only Securities outstanding at the time of such determination shall be considered in any such determination (including, without limitation, determinations pursuant to Articles 6 and 9). If a Security is replaced pursuant to Section 2.07, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide purchaser. If the Paying Agent holds, in accordance with this Indenture, on a Redemption Date, or on the Business Day following a Purchase Date or on the Stated Maturity, money or securities, if permitted hereunder, sufficient to pay Securities payable on that date, then on and after that date such Securities shall cease to be outstanding and Original Issue Discount and interest, if any, on such Securities shall cease to accrue and all other rights of the Holder shall terminate (other than the right to receive the applicable Principal Amount, Redemption Price or Purchase Price, as the case may be, upon delivery of the Security in accordance with the terms of this Indenture); 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. If a Security is converted in accordance with Article 11, then from and after the Conversion Date such Security shall cease to be outstanding and Original Issue Discount and interest, if any, shall cease to accrue on such Security. SECTION 2.09. Temporary Securities. Pending the preparation of definitive Securities, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the Officers executing such Securities may determine, as conclusively evidenced by their execution of such Securities. If temporary Securities are issued, the Company will cause definitive Securities to be prepared without unreasonable delay. After the preparation of definitive Securities, the temporary Securities shall be exchangeable for definitive Securities upon surrender of the temporary Securities at the office or agency of the Company designated for such purpose pursuant to Section 2.03 or - 9 - 4.05, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like Principal Amount of definitive Securities of authorized denominations. Until so exchanged the temporary Securities shall in all respects be entitled to the same benefits under this Indenture as definitive Securities. SECTION 2.10. Cancellation. All Securities surrendered for payment, redemption or purchase by the Company pursuant to Article 3, conversion pursuant to Article 11, or registration of transfer or exchange shall, if surrendered to any person other than the Trustee, be delivered to the Trustee and 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. The Company may not issue new Securities to replace Securities it has paid or delivered to the Trustee for cancellation or that any Holder has converted pursuant to Article 11. 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. All cancelled Securities held by the Trustee shall be destroyed by the Trustee in accordance with its standard procedures and evidence of their destruction delivered to the Company unless the Company directs by Company Order that the Trustee deliver cancelled Securities to the Company. SECTION 2.11. Persons Deemed Owners. Prior to due presentment of a Security for registration of transfer, 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 the Security or the payment of the Issue Price plus accrued Original Issue Discount or any Redemption Price or Purchase Price in respect thereof, and interest thereon, for the purpose of conversion and for all other purposes whatsoever, whether or not such Security is overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary. SECTION 2.12. Acts of Holders. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section 2.12. (b) 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 a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing - 10 - such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. 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. (c) The ownership of Securities shall be proved by the Register. (d) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security. (e) If the Company shall solicit from the Holders any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company may, at its option, by or pursuant to a Board resolution, fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite percentage or amount of Securities outstanding have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose, the Securities outstanding shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date. ARTICLE 3 REDEMPTION AND PURCHASES SECTION 3.01. Right to Redeem; Notices to Trustee. The Company, at its option, may redeem the Securities for cash in accordance with the provisions of paragraphs 5 and 7 of the Securities. If the Company elects to redeem Securities pursuant to paragraph 5 of the Securities, it shall notify the Trustee in writing of the Redemption Date, the Principal Amount of Securities to be redeemed and the Redemption Price. The Company shall give the notice to the Trustee provided for in this Section 3.01 at least 30 days before the Redemption Date (unless a shorter notice shall be satisfactory to the Trustee). If fewer than all the Securities are to be redeemed, the record date relating to such redemption shall be selected by the Company and given to the Trustee, which record date shall not be less than 10 days after the date of notice to the Trustee. - 11 - SECTION 3.02. Selection of Securities to Be Redeemed. If less than all the Securities are to be redeemed, the Trustee shall select the Securities to be redeemed pro rata or by lot or by a method the Trustee considers fair and appropriate (so long as such method is not prohibited by the rules of any stock exchange on which the Securities are then listed). The Trustee shall make the selection not more than 60 days before the Redemption Date from outstanding Securities not previously called for redemption. The Trustee may select for redemption portions of the Principal Amount of Securities that have denominations larger than $1,000. Securities and portions of Securities the Trustee selects shall be in Principal Amounts of $1,000 or an integral multiple of $1,000. Provisions of this Indenture that apply to Securities called for redemption also apply to portions of Securities called for redemption. The Trustee shall notify the Company promptly of the Securities or portions of Securities to be redeemed. If any Security selected for partial redemption is thereafter surrendered for conversion in part before termination of the conversion right with respect to the portion of the Security so selected, the converted portion of such Security shall be deemed (so far as may be), solely for purposes of determining the aggregate Principal Amount of Securities to be redeemed by the Company, to be the portion selected for redemption. Securities which have been converted during a selection of Securities to be redeemed may be treated by the Trustee as outstanding for the purpose of such selection. SECTION 3.03. Notice of Redemption. At least 15 days but not more than 60 days before a Redemption Date, the Company shall mail a notice of redemption by first-class mail, postage prepaid, to each Holder of Securities to be redeemed in the manner provided in Section 12.02. The notice shall identify the Securities to be redeemed and shall state: (1) the Redemption Date; (2) the Redemption Price; (3) the Conversion Rate; (4) the name and address of the Paying Agent and Conversion Agent and of the office or agency referred to in Section 4.05; (5) that Securities called for redemption may be converted at any time before the close of business on the Redemption Date; (6) that Holders who want to convert Securities must satisfy the requirements set forth in paragraph 9 of the Securities; - 12 - (7) that Securities called for redemption must be surrendered to the Paying Agent or at the office or agency referred to in Section 4.05 to collect the Redemption Price; (8) if fewer than all the outstanding Securities are to be redeemed, the certificate number and Principal Amounts of the particular Securities to be redeemed; (9) that, unless the Company defaults in making such redemption payment, Original Issue Discount on securities called for redemption, and interest, if any, will cease to accrue on and after the Redemption Date; and (10) the CUSIP number of such Security, if any. At the Company's request, the Trustee shall give the notice of redemption in the Company's name and at the Company's expense. SECTION 3.04. Effect of Notice of Redemption. Once notice of redemption is given, Securities called for redemption become due and payable on the Redemption Date stated in the notice and at the Redemption Price stated in the notice except for Securities which are converted in accordance with the terms of this Indenture. Upon the later of the Redemption Date or the date such Securities are surrendered to the Paying Agent or at the office or agency referred to in Section 4.05, such Securities called for redemption shall be paid at the Redemption Price stated in the notice. SECTION 3.05. Deposit of Redemption Price. Prior to or on the Redemption Date, the Company shall deposit with the Paying Agent (or if the Company or a Subsidiary or an Affiliate of either of them is the Paying Agent, shall segregate and hold in trust) money sufficient to pay the Redemption Price of all Securities to be redeemed on that date other than Securities or portions of Securities called for redemption which prior thereto have been delivered by the Company to the Trustee for cancellation or have been converted. The Paying Agent shall as promptly as practicable return to the Company any money, with interest, if any, thereon (subject to the provisions of Section 7.01(f)), not required for that purpose because of conversion of Securities pursuant to Article 11. If such money is then held by the Company or a Subsidiary or an Affiliate of the Company in trust and is not required for such purpose, it shall be discharged from such trust. SECTION 3.06. Securities Redeemed in Part. Upon surrender of a Security that is redeemed in part, the Company shall execute and the Trustee shall authenticate and deliver to the Holder a new Security in an authorized denomination equal in Principal Amount to the unredeemed portion of the Security surrendered. SECTION 3.07. Conversion Arrangement on Call for Redemption. In connection with any redemption of Securities, the Company may arrange for the purchase and conversion of any Securities called for redemption by an agreement with one or more investment bankers or other purchasers to purchase such Securities by paying to the Paying Agent in trust for the Securityholders whose Securities are to be so purchased, on or before the close of business on the - 13 - Redemption Date, an amount that, together with any amounts deposited with the Trustee by the Company for redemption of such Securities, is not less than the Redemption Price, together with interest, if any, accrued to the Redemption Date, of such Securities. Notwithstanding anything to the contrary contained in this Article 3, the obligation of the Company to pay the Redemption Price of such Securities, including all accrued interest, if any, shall be deemed to be satisfied and discharged to the extent such amount is so paid by such purchasers. If such an agreement is entered into, any Securities not duly surrendered for conversion by the Holders thereof may, at the option of the Company, be deemed, to the fullest extent permitted by law, acquired by such purchasers from such Holders and (notwithstanding anything to the contrary contained in Article 11) surrendered by such purchasers for conversion, all as of immediately prior to the close of business on the Redemption Date, subject to payment of the above amount as aforesaid. The Paying Agent shall hold and pay to the Holders whose Securities are selected for redemption any such amount paid to it in the same manner as it would moneys deposited with it by the Company for the redemption of Securities. Without the Paying Agent's prior written consent, no arrangement between the Company and such purchasers for the purchase and conversion of any Securities shall increase or otherwise affect any of the powers, duties, responsibilities or obligations of the Paying Agent as set forth in this Indenture, and the Company agrees to indemnify the Paying Agent from, and hold it harmless against, any loss, liability or expense arising out of or in connection with any such arrangement for the purchase and conversion of any Securities between the Company and such purchasers, including the costs and expenses incurred by the Paying Agent in the defense of any claim or liability arising out of or in connection with the exercise or performance of any of its powers, duties, responsibilities or obligations under this Indenture. SECTION 3.08. Purchase of Securities at Option of the Holder. (a) General. Securities shall be purchased by the Company pursuant to paragraph 6 of the Securities as of ______________ ____, ______, ________________ ____, ________, and _______________ _____, _________ (each, a "Purchase Date"), at the purchase price specified therein (each, a "Purchase Price"), at the option of the Holder thereof, upon: (1) delivery to the Paying Agent or to the office or agency referred to in Section 4.05 by the Holder of a written notice of purchase (a "Purchase Notice") at any time from the opening of business on the date that is 20 Business Days prior to a Purchase Date until the close of business on such Purchase Date, stating: (A) the certificate number of the Security which the Holder will deliver to be purchased, (B) the portion of the Principal Amount of the Security which the Holder will deliver to be purchased, which portion must be $1,000 or an integral multiple thereof, - 14 - (C) that such Security shall be purchased as of the Purchase Date pursuant to the terms and conditions specified in paragraph 6 of the Securities and in this Indenture, and (D) in the event the Company elects, pursuant to Section 3.08(b), to pay the Purchase Price to be paid as of such Purchase Date, in whole or in part, in Class A Common Stock but the Purchase Price shall ultimately be payable to such Holder entirely in cash because any of the conditions to payment of the Purchase Price in Class A Common Stock is not satisfied prior to or on the Purchase Date, as set forth in Section 3.08(d), whether such Holder elects (x) to withdraw such Purchase Notice as to some or all of the Securities to which such Purchase Notice relates (stating the Principal Amount and certificate numbers of the Securities as to which such withdrawal shall relate), or (y) to receive cash in respect of the entire Purchase Price for all Securities (or portions thereof) to which such Purchase Notice relates; and (2) delivery of such Security prior to, on or after the Purchase Date (together with all necessary endorsements) at the offices of the Paying Agent or to the office or agency referred to in Section 4.05, such delivery being a condition to receipt by the Holder of the Purchase Price therefor; provided, however, that such Purchase Price shall be so paid pursuant to this Section 3.08 only if the Security so delivered shall conform in all respects to the description thereof in the related Purchase Notice. If a Holder, in such Holder's Purchase Notice and in any written notice of withdrawal delivered by such Holder pursuant to the terms of Section 3.09, fails to indicate such Holder's choice with respect to the election set forth in clause (D) of Section 3.08(a)(1), such Holder shall be deemed to have elected to receive cash in respect of the entire Purchase Price for all Securities subject to such Purchase Notice in the circumstances set forth in such clause (D). The Company shall purchase from the Holder thereof, pursuant to this Section 3.08, a portion of a Security if the Principal Amount of such portion is $1,000 or an integral multiple of $1,000. Provisions of this Indenture that apply to the purchase of all of a Security also apply to the purchase of such portion of such Security. Any purchase by the Company contemplated pursuant to the provisions of this Section 3.08 shall be consummated by the delivery of the consideration to be received by the Holder promptly following the later of the Business Day following the Purchase Date and the time of delivery of the Security to the Paying Agent in the manner required by this Section 3.08. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent, or the office or agency referred to in Section 4.05, the Purchase Notice contemplated by this Section 3.08(a) shall have the right at any time prior to the close of business on the Purchase Date to withdraw such Purchase Notice by delivery of a written notice of withdrawal to the Paying Agent or such office or agency in accordance with Section 3.09. - 15 - The Paying Agent shall promptly notify the Company of its receipt of any Purchase Notice or written notice of withdrawal thereof. (b) Company's Right to Elect Manner of Payment of Purchase Price. The Company may elect with respect to any Purchase Date to pay the Purchase Price in respect of the Securities to be purchased pursuant to Section 3.08(a) as of such Purchase Date, in U.S. legal tender ("cash") or Class A Common Stock, or in any combination of cash and Class A Common Stock, subject to the conditions set forth in Sections 3.08(c) and (d). The Company shall designate, in the Company Notice delivered pursuant to Section 3.08(e), whether the Company will purchase the Securities for cash or Class A Common Stock, or, if a combination thereof, the percentages of the Purchase Price of Securities in respect of which it will pay in cash or Class A Common Stock; provided that the Company will pay cash for fractional interests in Class A Common Stock. For purposes of determining the existence of potential fractional interests, all Securities subject to purchase by the Company held by a Holder shall be considered together (no matter how many separate certificates are to be presented). Each Holder whose Securities are purchased pursuant to this Section 3.08 shall receive the same percentage of cash or Class A Common Stock in payment of the Purchase Price for such Securities, except (i) as provided in Section 3.08(d) with regard to the payment of cash in lieu of fractional interests in Class A Common Stock and (ii) in the event that the Company is unable to purchase the Securities of a Holder or Holders for Class A Common Stock because any necessary qualifications or registrations of the Class A Common Stock under applicable state securities laws cannot be obtained, the Company may purchase the Securities of such Holder or Holders for cash. The Company may not change its election with respect to the consideration (or components or percentages of components thereof) to be paid once the Company has given its Company Notice to Securityholders except pursuant to this Section 3.08(b) or Section 3.08(d) in the event of a failure to satisfy, prior to the close of business on the Purchase Date, any condition to the payment of the Purchase Price, in whole or in part, in Class A Common Stock. At least two Business Days before the Company Notice Date, the Company shall deliver an Officers' Certificate to the Trustee specifying: (i) the manner of payment selected by the Company, (ii) the information required by Section 3.08(e), (iii) if the Company elects to pay the Purchase Price, or a specified percentage thereof, in Class A Common Stock, that the conditions to such manner of payment set forth in Section 3.08(d) have been or will be complied with, and (iv) whether the Company desires the Trustee to give the Company Notice required by Section 3.08(e). "Class A Common Stock" shall mean the shares of Class A Common Stock, par value $1.50 per share, of the Company as it exists on the date of this Indenture or any other shares of Capital Stock of the Company into which the Class A Common Stock shall be reclassified or changed. - 16 - (c) Purchase with Cash. At the option of the Company, the Purchase Price of Securities in respect of which a Purchase Notice pursuant to Section 3.08(a) has been given, or a specified percentage thereof, may be paid by the Company with cash equal to the aggregate Purchase Price, or such specified percentage thereof, as the case may be, of such Securities. If the Company elects to purchase Securities with cash, a Company Notice as provided in Section 3.08(e) shall be sent to Holders (and to beneficial owners as required by applicable law) not less than 20 Business Days prior to the Purchase Date (the ''Company Notice Date"). (d) Payment by Issuance of Class A Common Stock. At the option of the Company, the Purchase Price of Securities in respect of which a Purchase Notice pursuant to Section 3.08(a) has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Class A Common Stock equal to the quotient obtained by dividing (i) the amount of cash to which the Securityholders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price of such Securities in cash by (ii) the Market Price of a share of Class A Common Stock, subject to the next succeeding paragraph. The Company will not issue a fractional share of Class A Common Stock in payment of the Purchase Price. Instead, the Company will pay cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security purchased, the number of shares of Class A Common Stock shall be based on the aggregate amount of Securities to be purchased. Each share of Class A Common Stock issued upon purchase of Securities pursuant to Section 3.08(a) shall be entitled to receive the appropriate number of preferred share purchase rights (the "Rights"), if any, and the certificates representing the Class A Common Stock issued upon such purchase shall bear such legends, if any, in each case as provided by and subject to the terms of the Rights Agreement dated as of February 8, 1994, between the Company and Chemical Trust Company of California, as Rights Agent (the "Rights Agreement"), as in effect at the time of such purchase. If the Company elects to purchase the Securities by the issuance of shares of Class A Common Stock, a Company Notice as provided in Section 3.08(e) shall be sent to the Holders (and to beneficial owners as required by applicable law) not later than the Company Notice Date. The Company's right to exercise its election to purchase the Securities pursuant to this Section 3.08 through the issuance of shares of Class A Common Stock shall be conditioned upon: (i) the Company's not having given its Company Notice of an election to pay entirely in cash and its giving of timely Company Notice of election to purchase all or a specified percentage of the Securities with Class A Common Stock as provided herein; - 17 - (ii) the registration of the shares of Class A Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price under the Securities Act of 1933, as amended (the "Securities Act"), or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), if required, unless there exists an applicable exemption to registration; (iii) any necessary qualification or registration under applicable state securities laws or the availability of an exemption from such qualification and registration; and (iv) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Class A Common Stock are in conformity with this Indenture and (B) the shares of Class A Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price in respect of Securities have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Price in respect of Securities, will be validly issued, fully paid and nonassessable, and, in the case of such Officers' Certificate, stating that conditions (i), (ii) and (iii) above have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii) and (iii) above have been satisfied and that, to the best of such counsel's knowledge, such shares of Class A Common Stock are free of preemptive rights. Such Officers' Certificate shall also set forth the number of shares of Class A Common Stock to be issued for each $1,000 Principal Amount of Securities and the Sale Price of a share of Class A Common Stock on each trading day during the period during which the Market Price is calculated and ending on the Purchase Date. The Company may elect to pay in Class A Common Stock only if the information necessary to calculate the Market Price is reported in a daily newspaper of national circulation. If such conditions are not satisfied with respect to a Holder or Holders prior to or on the Purchase Date and the Company elected to purchase the Securities to be purchased as of such Purchase Date pursuant to this Section 3.08 through the issuance of shares of Class A Common Stock, the Company shall pay the entire Purchase Price in respect of such Securities of such Holder or Holders in cash. The "Market Price" means the average of the Sale Price of the Class A Common Stock for the five trading day period ending on (if the third Business Day prior to the applicable Purchase Date is a trading day or, if not, then on the last trading day prior to) the third Business Day prior to the Purchase Date, as appropriately adjusted by the Board (which adjustment shall be conclusive and shall be evidenced by a Board Resolution) to take into account the occurrence, during the period commencing on the first of such trading days during such five trading day period and ending on such Purchase Date, of any event described in Section 11.06, 11.07 or 11.08; subject, however, to the conditions set forth in Sections 11.09 and 11.10. The "Sale Price" of the Class A Common Stock on any date means the closing per share sale price (or if no closing sale price is reported, the average of the bid and asked prices or, if more than one, in either case, the average of the average bid and average asked prices) on such date as reported in the composite transactions for the principal United States securities exchange on which the Class A Common Stock is traded or, if the Class A Common Stock is not listed on a United States national or regional stock exchange, as reported by the National Association of Securities Dealers Automated Quotation System. - 18 - (e) Notice of Election. Company Notices of election to purchase with cash, or Class A Common Stock, or any combination thereof, shall be sent to the Holders (and to beneficial owners as required by applicable law) in the manner provided in Section 12.02 at the time specified in Section 3.08(c) or (d), as applicable (a "Company Notice"). Such Company Notices shall state the manner of payment elected and shall contain the following information: In the event the Company has elected to pay a Purchase Price (or a specified percentage thereof) with Class A Common Stock, the Company Notice shall: (1) state that each Holder will receive Class A Common Stock with a Market Price determined as of a specified date prior to the Purchase Date equal to such specified percentage of the Purchase Price of the Securities held by such Holder (except any cash amount to be paid in lieu of fractional shares); and (2) set forth the method of calculating the Market Price and state that because the Market Price of Class A Common Stock will be determined prior to the Purchase Date, Holders will bear the market risk with respect to the value of the Class A Common Stock to be received from the date such Market Price is determined to the Purchase Date. In any case, each Company Notice shall state: (i) the Purchase Price and the Conversion Rate; (ii) the name and address of the Paying Agent and the Conversion Agent and of the office or agency referred to in Section 4.05; (iii) that Securities as to which a Purchase Notice has been given may be converted into Class A Common Stock only if the applicable Purchase Notice has been withdrawn in accordance with the terms of this Indenture; (iv) that Securities must be surrendered to the Paying Agent or to the office or agency referred to in Section 4.05 to collect payment; (v) that the Purchase Price for any Security as to which a Purchase Notice has been given and not withdrawn will be paid promptly following the later of the Purchase Date and the time of surrender of such Security as described in (iv); (vi) the procedures the Holder must follow to exercise rights under Section 3.08 and a brief description of those rights; (vii) briefly, the conversion rights of the Securities; and - 19 - (viii) the procedures for withdrawing a Purchase Notice (including, without limitation, for a conditional withdrawal pursuant to the terms of Section 3.08 (a)(1)(D) or Section 3.09). At the Company's request, the Trustee shall give such Company Notice in the Company's name and at the Company's expense; provided, however, that, in all cases, the text of such Company Notice shall be prepared by the Company. Upon determination of the actual number of shares of Class A Common Stock to be issued for each $1,000 Principal Amount of Securities, the Company will publish such determination in a daily newspaper of national circulation. (f) Covenants of the Company. All shares of Class A Common Stock delivered upon purchase of the Securities shall be newly issued shares or treasury shares, shall be duly authorized, validly issued, fully paid and nonassessable and shall be free from preemptive rights and free of any lien or adverse claim. The Company shall use its best efforts to list or cause to have quoted any shares of Class A Common Stock to be issued on each national securities exchange or over-the-counter or other domestic market on which the Class A Common Stock is then listed or quoted. (g) Procedure upon Purchase. On the Business Day following the Purchase Date, the Company shall deposit with the Paying Agent cash (in respect of a cash purchase under Section 3.08(c) or for fractional interests, as applicable), or shares of Class A Common Stock, or a combination thereof, as applicable, sufficient to pay the aggregate Purchase Price of the Securities to be purchased pursuant to this Section 3.08. As soon as practicable after the later of the Business Day following the Purchase Date and the date such Securities are surrendered to the Paying Agent or the office or agency referred to in Section 4.05, the Company shall deliver to each Holder entitled to receive Class A Common Stock, through the Paying Agent, a certificate for the number of full shares of Class A Common Stock, as applicable, issuable in payment of such Purchase Price and cash in lieu of any fractional interests. The person in whose name the certificate for Class A Common Stock is registered shall be treated as a holder of record of such Class A Common Stock following the related Purchase Date. Subject to Section 3.08(d), no payment or adjustment will be made for dividends on the Class A Common Stock the record date for which occurred on or prior to the Purchase Date. (h) Taxes. If a Holder of a Security is paid in Class A Common Stock, the Company shall pay any documentary, stamp or similar issue or transfer tax due on such issue of shares of Class A Common Stock. However, the Holder shall pay any such tax which is due because the Holder requests the shares of Class A Common Stock to be issued in a name other than the Holder's name. The Paying Agent may refuse to deliver the certificates representing the Class A Common Stock being issued in a name other than the Holder's name until the Paying Agent receives a sum sufficient to pay any tax which will be due because the shares of Class A Common Stock are to be issued in a name other than the Holder's name. Nothing herein shall preclude any income tax withholding required by law or regulations. - 20 - SECTION 3.09. Effect of Purchase Notice. Upon receipt by the Paying Agent of the Purchase Notice specified in Section 3.08(a), the Holder of the Security in respect of which such Purchase Notice was given, shall (unless such Purchase Notice is withdrawn as specified in the following two paragraphs) thereafter be entitled to receive solely the Purchase Price with respect to such Security. Such Purchase Price shall be paid to such Holder promptly following the later of (x) the Business Day following the Purchase Date with respect to such Security (provided the conditions in Section 3.08(a) have been satisfied) and (y) the time of delivery of such Security to the Paying Agent or the office or agency referred to in Section 4.05 by the Holder thereof in the manner required by Section 3.08(a) and (g). Securities in respect of which a Purchase Notice has been given by the Holder thereof may not be converted into shares of Class A Common Stock on or after the date of the delivery of such Purchase Notice, unless such Purchase Notice has first been validly withdrawn as specified in the following two paragraphs. A Purchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the office of the Paying Agent or the office or agency referred to in Section 4.05 at any time prior to the close of business on the Purchase Date to which it relates specifying: (1) the certificate number of the Security in respect of which such notice of withdrawal is being submitted, (2) the Principal Amount of the Security with respect to which such notice of withdrawal is being submitted, and (3) the Principal Amount, if any, of such Security which remains subject to the original Purchase Notice and which has been or will be delivered for purchase by the Company. A written notice of withdrawal of a Purchase Notice may be in the form of (i) a conditional withdrawal contained in a Purchase Notice pursuant to the terms of Section 3.08(a)(1)(D) or (ii) a conditional withdrawal containing the information set forth in Section 3.08(a)(1)(D) and the preceding paragraph and contained in a written notice of withdrawal delivered to the Paying Agent as set forth in the preceding paragraph. There shall be no purchase of any Securities pursuant to Section 3.08 (other than through the issuance of Class A Common Stock in payment of the Purchase Price, including cash in lieu of any fractional shares) if there has occurred (prior to, on or after the giving, by the Holders of such Securities, of the required Purchase Notice) and is continuing an Event of Default (other than a default in the payment of the Purchase Price with respect to such Securities). The Paying Agent will promptly return to the respective Holders thereof any Securities with respect to which (a) a Purchase Notice has been withdrawn in compliance with this Indenture or (b) a purchase is prohibited pursuant to the first sentence of this paragraph. SECTION 3.10. Deposit of Purchase Price. On or before the Business Day following a Purchase Date, the Company shall deposit with the Trustee or with the Paying Agent (or, if the Company or a Subsidiary or an Affiliate of - 21 - either of them is acting as the Paying Agent, shall segregate and hold in trust as provided in Section 2.04) an amount of cash and/or Class A Common Stock, if permitted hereunder, sufficient to pay the aggregate Purchase Price of all the Securities or portions thereof which are to be purchased as of such Purchase Date. SECTION 3.11. Securities Purchased in Part. Any Security which is to be purchased only in part shall be surrendered at the office of the Paying Agent or the office or agency referred to in Section 4.05 (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder's 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 any authorized denomination as requested by such Holder in aggregate Principal Amount equal to, and in exchange for, the portion of the Principal Amount of the Security so surrendered which is not purchased. SECTION 3.12. Covenant to Comply With Securities Laws Upon Purchase of Securities. In connection with any offer to purchase or purchase of Securities under Section 3.01 or 3.08 hereof, the Company shall (i) comply with Rule 13e-4 and Rule 14e-l (which term, as used herein, includes any successor provision thereto) under the Exchange Act, if applicable, (ii) file the related Schedule 13E-4 (or any successor schedule, form or report) under the Exchange Act, if applicable, and (iii) otherwise comply with all Federal and state securities laws so as to permit the rights and obligations under Sections 3.01 and 3.08 to be exercised in the time and in the manner specified in Sections 3.01 and 3.08. SECTION 3.13. Repayment to the Company. The Trustee and the Paying Agent shall return to the Company any cash or shares of Class A Common Stock, together with interest on such cash, if any, or dividends on such shares of Class A Common Stock, if any, (subject to the provisions of Section 7.01(f)) held by them for the payment of a Purchase Price that remain unclaimed as provided in paragraph 13 of the Securities; provided, however, that to the extent that the aggregate amount of cash or shares of Class A Common Stock deposited by the Company pursuant to Section 3.10 exceeds the aggregate Purchase Price of the Securities or portions thereof to be purchased, then promptly after the Business Day following the Purchase Date, the Trustee shall return any such excess to the Company together with interest or dividends, if any, thereof (subject to the provisions of Section 7.01(f)). SECTION 3.14. CUSIP Numbers The Company in issuing the Securities may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall indicate the "CUSIP" numbers of the Securities in notices of redemption as a convenience to Holders; provided that neither the Company nor the Trustee shall have any responsibility for any defect in the CUSIP number that appears on any Security, check, advice of payment or notice, and any such document may contain of statement to the effect that CUSIP numbers have been assigned by an independent service for convenience of reference and that neither the Company nor the Trustee shall be liable for any inaccuracy in such numbers; and provided further that any such document may state that no representation is made as to the correctness or accuracy of such numbers either as printed on the Securities or as contained in any notice of redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. ARTICLE 4 COVENANTS SECTION 4.01. Payment of Securities. The Company shall promptly make all payments in respect of the Securities on the dates and in the manner provided in the Securities or pursuant to this Indenture. Principal Amount, Issue Price, accrued Original Issue Discount, Redemption Price, Purchase Price and interest, if any, shall be considered paid on the applicable date due (which in the case of a Purchase Price is the Business Day following the applicable Purchase Date, as set forth in Section 3.08) if on such date the Trustee or the - 22 - Paying Agent holds, in accordance with this Indenture, cash or securities, if permitted hereunder, sufficient to pay all such amounts then due. The Company shall pay interest on overdue amounts at the rate set forth in paragraph 1 of the Securities and it shall pay interest on overdue interest at the same rate compounded semiannually (to the extent that the payment of such interest shall be legally enforceable), which interest on overdue interest shall accrue from the date such amounts became overdue. The accrual of such interest on overdue amounts shall be in lieu of, and not in addition to, the continued accrual of Original Issue Discount. SECTION 4.02. SEC Reports. The Company shall file with the Trustee and the SEC, and transmit to Holders, such information, documents and other reports, and such summaries thereof, as may be required pursuant to the TIA at the times and in the manner provided pursuant to the TIA; provided that any such information, documents or reports required to be filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the same is so required to be filed with the SEC. The Company shall file with the Trustee, within 15 days after it files such annual and quarterly reports, information, documents and other reports with the SEC, copies of its annual report and of the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may by rules and regulations prescribe) which the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. The Company also shall comply with the other provisions of TIA Section 314(a). SECTION 4.03. Compliance Certificate. Each obligor (including the Company) shall deliver to the Trustee within 120 days after the end of each fiscal year of the Company (beginning with the fiscal year ending on September 30, ____) a certificate from such obligor's principal executive officer, principal financial officer or principal accounting officer, stating that 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 whether or not the signer knows of any Default that occurred during such period. If such certificate evidences knowledge of any Default, such certificate shall describe the Default and its current status. SECTION 4.04. Further Instruments and Acts. Upon request of the Trustee, the Company will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purposes of this Indenture. SECTION 4.05. Maintenance of Office or Agency. The Company will maintain in the City of San Francisco, California, an office or agency where Securities may be presented or surrendered for payment, where Securities may be surrendered for registration of transfer, exchange, purchase, redemption or conversion and where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served. The office of the Trustee at 50 California Street, 10th Floor, San Francisco, California 94111, Attention: Corporate Trust Administration, shall be such office or agency for all of the aforesaid purposes unless the Company shall maintain some other office or agency - 23 - for such purposes and shall give prompt written notice to the Trustee of the location, and any change in the location, of such other office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the address of the Trustee set forth in Section 12.02. The Company may also from time to time designate one or more other offices or agencies where the Securities may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in San Francisco, California for such purposes. ARTICLE 5 SUCCESSOR CORPORATION SECTION 5.01. When Company May Merge or Transfer Assets. The Company shall not consolidate with or merge with or into any other person or convey, transfer or lease its properties and assets substantially as an entirety to any person, unless: (a) either (1) the Company shall be the continuing corporation or (2) the person (if other than the Company) formed by such consolidation or into which the Company is merged or the person which acquires by conveyance, transfer or lease the properties and assets of the Company substantially as an entirety (i) shall be a corporation, partnership or trust organized and validly existing under the laws of the United States or any State thereof or the District of Columbia and (ii) shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all of the obligations of the Company under the Securities and this Indenture; (b) immediately after giving effect to such transaction and the assumption contemplated by clause (a) above, no Default shall have occurred and be continuing; and (c) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with this Article and that all conditions precedent herein provided for relating to such transaction have been satisfied. The successor person formed by such consolidation or into which the Company is merged or the successor person to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of the Company under this Indenture with the same effect as if such successor had been named as the Company herein; and thereafter, except in the case of (i) a lease of its properties and assets substantially as an entirety and (ii) obligations the Company may have under a supplemental - 24 - indenture pursuant to Section 11.14, the Company shall be discharged and released from all obligations and covenants under this Indenture and the Securities. Subject to Section 9.06, the Trustee shall enter into a supplemental indenture to evidence the succession and substitution of such successor person and discharge and release of the Company. ARTICLE 6 DEFAULTS AND REMEDIES SECTION 6.01. Events of Default. An Event of Default, occurs if: (1) the Company defaults in the payment of the Principal Amount, Issue Price, accrued Original Issue Discount, Redemption Price or Purchase Price (and, with respect to a default in the payment of a Purchase Price, such default continues for a period of three Business Days) on any Security when the same becomes due and payable at its Stated Maturity, upon redemption, upon declaration, when due for purchase by the Company or otherwise, whether or not such payment shall be prohibited by Article 10; (2) the Company fails to comply with any of its agreements in the Securities or this Indenture (other than those referred to in clause (1) above) and such failure continues for 90 days after receipt by the Company of a Notice of Default; (3) a decree or order by a court having jurisdiction in the premises shall have been entered adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization of the Company under any Bankruptcy Law, and such decree or order shall have continued undischarged and unstayed for a period of 90 consecutive days; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of the Company or of its property, or for the winding up or liquidation of its affairs, shall have been entered, and such decree or order shall have remained in force undischarged and unstayed by a period of 90 consecutive days; or (4) the Company shall institute proceedings to be adjudicated a voluntary bankrupt, or shall consent to the filing of a bankruptcy proceeding against it, or shall file a petition or answer or consent seeking reorganization under any Bankruptcy Law, or shall consent to the filing of any such petition, or shall consent to the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of it or of its property or shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts generally as they become due; or (5)(i) a default occurs under any instrument or instruments (including this Indenture) under which there is at the time outstanding, or by which there may be secured or evidence, any indebtedness of the Company or any Subsidiary for money borrowed by the Company or any Subsidiary or any guarantee of payment by the Company or any Subsidiary of any obligation of any Person which results in acceleration (whether by declaration or automatically) of, or the nonpayment at maturity (after giving effect to any applicable grace period) of, such indebtedness or guarantee in an aggregate amount exceeding $15,000,000, in which case the Company shall immediately give notice to the Trustee of such acceleration or nonpayment and (ii) there shall have been a failure to cure such default or to discharge all such defaulted indebtedness or guarantee or such default is not otherwise waived and such acceleration has not been rescinded or annulled within fifteen (15) days after receipt by the Company from the Trustee or by the Company and the Trustee from the Holders of at least 25% in principal amount of the Securities then Outstanding of a written notice thereof, by registered or certified mail, and stating that such notice is a "Notice of Default" hereunder. "Bankruptcy Law" means Title 11, United States Code, or any similar Federal or state law for the relief of debtors. "Custodian" means any receiver, trustee, assignee, liquidator, custodian or similar official under any Bankruptcy Law. - 25 - A Default under clause (2) above is not an Event of Default until the Trustee notifies the Company, or the Holders of at least 25% in aggregate Principal Amount of the Securities at the time outstanding notify the Company and the Trustee, of the Default and the Company does not cure such Default (and such Default is not waived) within the time specified in clause (2) above after receipt of such notice. Any such notice must specify the Default, demand that it be remedied and state that such notice is a Notice of Default. SECTION 6.02. Acceleration. If an Event of Default occurs and is continuing, the Trustee by notice to the Company, or the Holders of at least 25% in aggregate Principal Amount of the Securities at the time outstanding by notice to the Company and the Trustee, may declare the Issue Price and accrued Original Issue Discount to the date of declaration on all the Securities to be immediately due and payable. Upon such a declaration, such Issue Price and accrued Original Issue Discount shall be due and payable immediately. The Holders of a majority in aggregate Principal Amount of the Securities at the time outstanding, by notice to the Trustee (and without notice to any other Securityholder), may rescind an acceleration and its consequences if the rescission would not conflict with any judgment or decree and if all existing Events of Default have been cured or waived except nonpayment of the Issue Price and accrued original Issue Discount that have become due solely as a result of acceleration and if all amounts due to the Trustee under Section 7.07 have been paid. No such rescission shall affect any subsequent Default or impair any right consequent thereto. SECTION 6.03. Other Remedies. If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of the Issue Price and accrued Original Issue Discount on the Securities or to enforce the performance of any provision of the Securities or this Indenture. The Trustee may maintain a proceeding even if the Trustee does not possess any of the Securities or does not produce any of the Securities in the proceeding. A delay or omission by the Trustee or any Securityholder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of, or acquiescence in, the Event of Default. No remedy is exclusive of any other remedy. All available remedies are cumulative. SECTION 6.04. Waiver of Past Defaults. The Holders of a majority in aggregate Principal Amount of the Securities at the time outstanding, by notice to the Trustee (and without notice to any other Securityholder), may waive an existing Default and its consequences except (1) an Event of Default described in Section 6.01(1), (2) a Default in respect of a provision that under Section 9.02 cannot be amended without the consent of each Securityholder affected or (3) a Default under Article 11. When a Default is waived, it is deemed cured, but no such waiver shall extend to any subsequent or other Default or impair any consequent right. This Section 6.04 shall be in lieu of Section 316(a)(1)(B) of - 26 - the TIA and such Section 316(a)(1)(B) is hereby expressly excluded from this Indenture, as permitted by the TIA. SECTION 6.05. Control by Majority. The Holders of a majority in aggregate Principal Amount of the Securities at the time outstanding may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture or that the Trustee determines in good faith is unduly prejudicial to the rights of other Securityholders or would involve the Trustee in personal liability unless the Trustee is offered indemnity satisfactory to it. This Section 6.05 shall be in lieu of Section 316(a)(1)(A) of the TIA and such Section 316(a)(1)(A) is hereby expressly excluded from this Indenture, as permitted by the TIA. SECTION 6.06. Limitation on Suits. A Securityholder may not pursue any remedy with respect to this Indenture or the Securities unless: (1) the Holder gives to the Trustee written notice stating that an Event of Default is continuing; (2) the Holders of at least 25% in aggregate Principal Amount of the Securities at the time outstanding make a written request to the Trustee to pursue the remedy; (3) such Holder or Holders offer to the Trustee reasonable security or indemnity against any loss, liability or expense satisfactory to the Trustee; (4) the Trustee does not comply with the request within 60 days after receipt of the notice, the request and the offer of security or indemnity; and (5) the Holders of a majority in aggregate Principal Amount of the Securities at the time outstanding do not give the Trustee a direction inconsistent with the request during such 60-day period. A Securityholder may not use this Indenture to prejudice the rights of any other Securityholder or to obtain a preference or priority over any other Securityholder. SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding any other provision of this Indenture, but subject to Article 10, the right of any Holder to receive payment of the Principal Amount, Issue Price, accrued original Issue Discount, Redemption Price, Purchase Price or interest, if any, in respect of the Securities held by such Holder, on or after the respective due dates expressed in the Securities or any Redemption Date, and to convert the Securities in accordance with Article 11, or to bring suit for the enforcement of any such payment on or after such respective dates or the right to convert, shall not be impaired or affected adversely without the consent of each such Holder. - 27 - SECTION 6.08. Collection Suit by Trustee. If an Event of Default described in Section 6.01(1) occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Company for the whole amount owing with respect to the Securities and the amounts provided for in Section 7.07. SECTION 6.09. 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 Amount, Issue Price, accrued Original Issue Discount, Redemption Price, Purchase Price or interest, if any, in respect of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of any such amount) shall be entitled and empowered, by intervention in such proceeding or otherwise, (a) to file and prove a claim for the whole amount of the Principal Amount, Issue Price, accrued Original Issue Discount, Redemption Price, Purchase Price or interest, if any, 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 of the Holders allowed in such judicial proceeding, and (b) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or 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 the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding. SECTION 6.10. Priorities. If the Trustee collects any money pursuant to this Article 6, it shall pay out the money in the following order: FIRST: to the Trustee for amounts due under Section 7.07; SECOND: to holders of Senior Indebtedness to the extent required by Article 10; - 28 - THIRD: to Securityholders for amounts due and unpaid on the Securities for the Principal Amount, Issue Price, accrued Original Issue Discount, Redemption Price, Purchase Price or interest, if any, as the case may be, ratably, without preference or priority of any kind, according to such amounts due and payable on the Securities; and FOURTH: the balance, if any, to the Company. The Trustee may fix a record date and payment date for any payment to Securityholders pursuant to this Section 6.10 and shall provide the Company at least 20 days notice of such record date. At least 15 days before such record date, the Company shall mail to each Securityholder and the Trustee a notice that states the record date, the payment date and amount to be paid. SECTION 6.11. Undertaking for Costs. 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 or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant (other than the Trustee) in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys' fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by Holders of more than 10% in aggregate Principal Amount of the Securities at the time outstanding. This Section 6.11 shall be in lieu of Section 315(e) of the TIA and such Section 315(e) is hereby expressly excluded from this Indenture as permitted by the TIA. SECTION 6.12. Waiver of Stay, Extension or Usury 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 or any usury or other law wherever enacted, now or at any time hereafter in force, which would prohibit or forgive the Company from paying all or any portion of the Principal Amount, Issue Price, accrued Original Issue Discount, Redemption Price or Purchase Price in respect of Securities, or any interest on any such amounts, as contemplated herein, or which may affect the covenants or the performance of this Indenture or the Securities; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such laws 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 7 TRUSTEE SECTION 7.01. Duties of Trustee. (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers - 29 - vested in it by this Indenture and use the same degree of care and skill in its exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. (b) Except during the continuance of an Event of Default: (1) the Trustee need perform only those duties that are specifically set forth in this Indenture and no others; and no implied covenants or obligations shall be read into this Indenture against the Trustee; and (2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture. This Section 7.01(b) shall be in lieu of Section 315(a) of the TIA and such Section 315(a) is hereby expressly excluded from this Indenture, as permitted by the TIA. (c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that: (1) this paragraph (c) does not limit the effect of paragraph (b) of this Section 7.01; (2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and (3) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05. Subparagraphs (c)(1), (2) and (3) shall be in lieu of Sections 315(d)(1), 315(d)(2) and 315(d)(3) of the TIA and such Sections 315(d)(1), 315(d)(2) and 315(d)(3) are hereby expressly excluded from this Indenture, as permitted by the TIA. (d) Every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.01. (e) The Trustee may refuse to perform any duty or exercise any right or power or expend or risk its own funds or otherwise incur any financial liability unless it receives indemnity satisfactory to it against any loss, liability or expense. (f) Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. - 30 - SECTION 7.02. Rights of Trustee. Subject to its duties and responsibilities under the TIA: (a) The Trustee may rely on any document believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in any document, but may in its discretion make such further inquiry or investigation into such facts or matters as it may see fit, including examination of the books, records and premises of the Company, personally or by agents reasonably acceptable to the Company. (b) Before the Trustee acts or refrains from acting, it may require a Company Order, an Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Company Order, Officers' Certificate or Opinion of Counsel. (c) The Trustee may act through agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care. (d) Subject to the provisions of Section 7.01(c), the Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers. (e) Before the Trustee acts or refrains from acting, the Trustee may consult with counsel of its selection and the written advice of such consel 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. SECTION 7.03. Individual Rights of Trustee. The Trustee in its individual or any other capacity may became the owner or pledgee of Securities and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee. Any Paying Agent, Registrar, Conversion Agent or co-registrar may do the same with like rights. However, the Trustee must comply with Sections 7.10 and 7.11. SECTION 7.04. Trustee's Disclaimer. The Trustee makes no representation as to the validity or adequacy of this Indenture or the Securities, it shall not be accountable for the Company's use of the proceeds from the Securities, it shall not be responsible for any statement in the registration statement (other than the Statement of Eligibility under the Trust Indenture Act of 1939 on Form T-1 attached as an exhibit thereto) for the Securities under the Securities Act or in the Indenture or the Securities (other than its certificate of authentication), the acts of any prior Trustee hereunder, or the determination as to which beneficial owners are entitled to receive any notices hereunder. SECTION 7.05. Notice of Defaults. If a Default occurs and is continuing and if it is known to the Trustee, the Trustee shall give to each Securityholder, in the manner and to the extent provided in Section 12.02, notice of the Default within 90 days after it occurs. Except in the case of a - 31 - Default described in Section 6.01(1), the Trustee may withhold the notice if and so long as a committee of its Trust Officers in good faith determines that withholding the notice is in the interests of Securityholders. The Trustee shall not give notice of a Default pursuant to Section 6.01(2) until at least ninety days have passed since its occurrence. The second sentence of this Section 7.05 shall be in lieu of the proviso to Section 315(b) of the TIA and such proviso is hereby expressly excluded from this Indenture, as permitted by the TIA. The Trustee shall not be deemed to have knowledge of any Default or Event of Default or of any event or condition which, with the giving of notice, the passage or time of both, might constitute a Default or Event of Default unless (i) the Trustee has received written notice thereof from the Company or a Holder or (ii) a Trust Officer shall have actual knowledge thereof. SECTION 7.06. Reports by Trustee to Holders. Within 60 days after each ________ 15 beginning with the _______ 15 following the date of this Indenture, the Trustee shall mail to each Securityholder a brief report dated as of such _______ 15 that complies with TIA Section 313(a), if required by such Section. The Trustee also shall comply with TIA Section 313(b). A copy of each report at the time of its mailing to Securityholders shall be provided to the Company and shall be filed with the SEC and each stock exchange on which the Securities are listed. The Company agrees to notify the Trustee in writing whenever the Securities become listed on any stock exchange and of any delisting thereof. SECTION 7.07. Compensation and Indemnity. The Company agrees: (a) to pay to the Trustee from time to time such compensation as the Company and the Trustee shall from time to time agree in writing for all services rendered by it hereunder (which compensation shall not (to the extent permitted by law) be limited by any provision of law in regard to the compensation of a trustee of an express trust); (b) to reimburse the Trustee upon its request and, if required by the Company, submission of reasonable documentation 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, advances and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and (c) to indemnify the Trustee and each of the Trustee's directors, officers, employees, agents, successors and assigns (the "Indemnitees") for, and to hold them harmless against, any loss, liability or expense including taxes (other than taxes based upon, measured by, or determined by, the income of the Trustee) incurred without negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending the Indemnitees against any claim or liability in connection with the exercise or performance of any of their powers or duties hereunder as Trustee, Authenticating Agent, Security Registrar, Paying Agent or Conversion Agent. - 32 - The Trustee shall give the Company notice of any claim or liability for which the Trustee might be entitled to indemnification under subparagraph (c) of this Section 7.07 within a reasonable amount of time after a Trust Officer of the Trustee becomes aware of such claim or liability. To secure the Company's payment obligations in this Section 7.07, the Trustee shall have a lien prior to the Securities on all money or property held or collected by the Trustee, except that held in trust to pay the Issue Price, accrued Original Issue Discount, Redemption Price, Purchase Price or interest, if any, as the case may be, on particular Securities. The Company's payment obligations pursuant to this Section 7.07 shall survive the discharge of this Indenture. When the Trustee incurs expenses after the occurrence of a Default specified in Section 6.01(3) or (4), the expenses are intended to constitute expenses of administration under any Bankruptcy Law. SECTION 7.08. Replacement of Trustee. The Trustee may resign by so notifying the Company; no such resignation shall be effective until a successor Trustee has accepted its appointment pursuant to this Section 7.08. The Holders of a majority in aggregate Principal Amount of the Securities at the time outstanding may remove the Trustee by so notifying the Trustee and may appoint a successor Trustee (subject to the consent of the Company, such consent not to be unreasonably withheld). The Company shall remove the Trustee if: (1) the Trustee fails to comply with, or ceases to be eligible under, Section 7.10; (2) the Trustee is adjudged bankrupt or insolvent; (3) a receiver or public officer takes charge of the Trustee or its property; or (4) the Trustee otherwise becomes incapable of acting. If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint, by resolution of its Board of Directors, a successor Trustee. A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Securityholders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided for in Section 7.07. If a successor Trustee does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of a majority in aggregate Principal Amount of the Securities at the time outstanding may petition any court of competent jurisdiction for the appointment of a successor Trustee. - 33 - If the Trustee fails to comply with Section 7.10, any Securityholder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. SECTION 7.09. Successor Trustee by Merger. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another corporation, the resulting, surviving or transferee corporation without any further act shall be the successor Trustee. SECTION 7.10. Eligibility; Disqualification. If the Trustee has or shall acquire a conflicting interest within the meaning of the TIA, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the TIA and this Indenture. To the extent permitted by the TIA, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under any indenture or indentures in each case as and to the the extent that such indenture satisfies the requirements set forth in Section 310(b)(i) of the TIA. The Trustee shall at all times satisfy the requirements of TIA Sections 310(a)(1) and 310(b). The Trustee hereby represents and warrants that it is currently in compliance and at all times will remain in compliance with the requirements of this Section 7.10. The Trustee shall have a combined capital and surplus of at least $10,000,000 as set forth in its most recent published annual report of condition. Neither the Company nor any Affiliate of the Company may serve as Trustee. Nothing herein contained shall prevent the Trustee from filing with the Commission the application referred to in the penultimate paragraph of TIA Section 310(b). If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article. SECTION 7.11. Preferential Collection of Claims Against Company. The Trustee shall comply with TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b). A Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the extent indicated therein. ARTICLE 8 DISCHARGE OF INDENTURE SECTION 8.01. Discharge of Liability on Securities. When (i) the Company delivers to the Trustee all outstanding Securities (other than Securities replaced pursuant to Section 2.07) for cancellation or (ii) all outstanding Securities have became due and payable and the Company deposits with the Trustee cash and/or Class A Common Stock, as permitted by the terms hereof, sufficient to pay at Stated Maturity the Principal Amount of all outstanding Securities (other than Securities replaced pursuant to Section 2.07), and if in either case the Company pays all other sums payable hereunder by the Company, then this Indenture shall, subject to Section 7.07, cease to be of further effect. The Trustee shall join in the execution of a document prepared by the Company acknowledging satisfaction and discharge of this Indenture on demand of - 34 - the Company accompanied by an Officers' Certificate and Opinion of Counsel and at the cost and expense of the Company. SECTION 8.02. Repayment to the Company. The Trustee and the Paying Agent shall return to the Company upon written request any money or securities held by them for the payment of any amount with respect to the Securities that remains unclaimed for two years, provided, however, that the Trustee or such Paying Agent, before being required to make any such return, may at the expense of the Company cause to be published once in a newspaper of general circulation in the City of New York or mail to each such Holder notice that such money or securities remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication or mailing, any unclaimed money or securities then remaining will be returned to the Company. After return to the Company, Holders entitled to the money or securities must look to the Company for payment as general creditors unless an applicable abandoned property law designates another person. ARTICLE 9 AMENDMENTS SECTION 9.01. Without Consent of Holders. The Company and the Trustee may amend this Indenture or the Securities without the consent of any Securityholder: (1) to cure any ambiguity, defect or inconsistency; (2) to comply with Article 5 or Section 11.14; (3) to provide for uncertificated Securities in addition to certificated Securities so long as such uncertificated Securities are in registered form for purposes of the Internal Revenue Code of 1986, as amended; (4) to make any change that does not adversely affect the rights of any Holder of an outstanding Security; (5) to make any change to comply with the TIA, or any amendment thereto, or to comply with any requirement of the SEC in connection with the qualification of the Indenture under the TIA or any amendment thereof; (6) to add to the covenants or obligations of the Company hereunder or to surrender any right, power or option herein conferred upon the Company; (7) to provide for Securities which are exchangeable for any securities of any person and the terms and conditions upon which such Securities will be so exchangeable; provided, however, that no such amendment shall be made subsequent to the issuance of Securities under this Indenture, unless such amendment is approved in accordance with Section 9.02; (8) to add any additional Events of Dafault; or (9) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee, pursuant to the requirements of Section 7.08. - 35 - SECTION 9.02. With Consent of Holders. With the written consent of the Holders of at least a majority in aggregate Principal Amount of the Securities at the time outstanding, the Company and the Trustee may amend this Indenture or the Securities. However, without the consent of each Securityholder affected, an amendment or supplement to this Indenture or the Securities may not: (1) make any change to the Principal Amount of Securities whose Holders must consent to an amendment; (2) make any change to the rate of accrual in connection with Original Issue Discount, reduce the rate of interest referred to in paragraph 1 of the Securities or extend the time for payment of Original Issue Discount or interest, if any, on any Security; (3) reduce the Principal Amount or the Issue Price of or extend the Stated Maturity of any Security; (4) reduce the Redemption Price or Purchase Price of any Security; (5) make any Security payable in money or securities other than that stated in the Security; (6) make any change in Article 10 that adversely affects the rights of any Securityholder; (7) make any change in Section 6.04, Section 6.07 or this Section 9.02, except to increase any percentage referred to therein or herein; (8) make any change that adversely affects the right to convert any Security; or (9) make any change that adversely affects the right to require the Company to purchase the Securities in accordance with the terms thereof and this Indenture. It shall not be necessary for the consent of the Holders under this Section 9.02 to approve the particular form of any proposed amendment, but it shall be sufficient if such consent approves the substance thereof. An amendment under this Section 9.02 or Section 9.01 may not make any change that adversely affects the rights under Article 10 of any holder of Senior Indebtedness then outstanding unless the requisite holders of such Senior Indebtedness consent to such change pursuant to the terms of such Senior Indebtedness. After an amendment under this Section 9.02 becomes effective, the Company shall mail to each Holder a notice briefly describing the amendment. - 36 - SECTION 9.03. Compliance with Trust Indenture Act. Every supplemental indenture executed pursuant to this Article shall comply with the TIA as then in effect. SECTION 9.04. Revocation and Effect of Consents, Waivers and Actions. Until an amendment, waiver or other action becomes effective, a consent to it or any other action by a Holder of a Security hereunder is a continuing consent by the Holder and every subsequent Holder of that Security or portion of the Security that evidences the same obligation as the consenting Holder's Security, even if notation of the consent, waiver or action is not made on the Security. However, any such Holder or subsequent Holder may revoke the consent, waiver or action as to such Holder's Security or portion of the Security if the Trustee receives the notice of revocation before the date the amendment, waiver or action becomes effective. After an amendment, waiver or action becomes effective, it shall bind every Securityholder. SECTION 9.05. Notation on or Exchange of Securities. 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 Board of Directors, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for outstanding Securities. SECTION 9.06. Trustee to Sign Supplemental Indentures. The Trustee shall sign any supplemental indenture authorized pursuant to this Article 9 if the amendment does not adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may, but need not, sign such supplemental indenture. In signing such amendment the Trustee shall be entitled to receive, and (subject to the provisions of Section 7.01) shall be fully protected in relying upon, an Officer's Certificate and an opinion of Counsel stating that such amendment is authorized or permitted by this Indenture. SECTION 9.07. 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. ARTICLE 10 SUBORDINATION SECTION 10.01. Securities Subordinate to Senior Indebtedness. The Company covenants and agrees, and each Holder of a Security by such Holder's acceptance thereof likewise covenants and agrees, that, to the extent and in the manner hereinafter set forth in this Article 10, the indebtedness represented by the Securities and the payment of the Principal Amount, Issue Price, accrued Original Issue Discount, Redemption Price, Purchase Price and interest, if any, - 37 - in respect of each and all of the Securities are hereby expressly made subordinate and subject in right of payment to the prior payment in full of all Senior Indebtedness. "Senior Indebtedness" means the principal of (and premium, if any) and interest, if any, on (a) all indebtedness of the Company (including indebtedness of others guaranteed by the Company) (other than (w) the Securities, (x) indebtedness outstanding under the indenture between the Company and Chemical Trust Company of California ("Chemical") dated as of July 15, 1986, (y) the subordinated indentures between the Company and Chemical dated as of December 1, 1992 and January 1, 1996, respectively and (z) indebtedness as to which the instruments creating or evidencing the same provide that such indebtedness is not senior in right of payment to the Securities (collectively, the "Pari Passu Debt")), whether outstanding on the date of this Indenture or hereafter created, incurred or assumed, that is (i) for money borrowed or (ii) evidenced by a note or similar instrument given in connection with the acquisition of any businesses, properties or assets of any kind, except in the ordinary course of business, (b) obligations of the Company as lessee under leases required to be capitalized on the consolidated balance sheet of the Company under generally accepted accounting principles or leases of property made as part of any sale and leaseback transaction to which the Company is a party and (c) amendments, renewals, extensions, modifications and refundings of any such indebtedness or obligations; unless in any case referred to in clauses (a), (b) and (c), in the instrument creating or evidencing any such indebtedness or obligation or pursuant to which the same is outstanding it is provided that such indebtedness or obligation is not superior in right of payment to the Securities or to any Pari Passu Debt. SECTION 10.02. Payment Over of Proceeds upon Dissolution, Etc. Upon any distribution of assets of the Company in the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative to the Company or to its creditors, as such, or to its assets, or (b) any liquidation, dissolution or other winding up of the Company, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or any other marshaling of assets and liabilities of the Company, then and in such event (1) the holders of Senior Indebtedness shall be entitled to receive payment in full of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in cash, before the Holders of the Securities are entitled to receive any payment on account of the Principal Amount, Issue Price, accrued Original Issue Discount, Redemption Price, Purchase Price or interest, if any, in respect of the Securities; and - 38 - (2) any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, by set-off or otherwise, to which the Holders or the Trustee would be entitled but for the provisions of this Article 10, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other Debt 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, ratably according to the aggregate amounts remaining unpaid on account of the principal of, and premium, if any, and interest, if any, 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. In the event that, notwithstanding the foregoing provisions of this Section 10.02, the Trustee or the Holder of any Security shall receive 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 Debt of the Company being subordinated to the payment of the Securities, before all Senior Indebtedness is paid in full or payment thereof provided for, and if such fact shall then have been made known to the Trustee, or, as the case may be, such Holder, then and in such event 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 application to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness. For purposes of this Article 10 only, the words "cash, property or securities" shall not be deemed to include shares of Capital Stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinated, at least to the extent provided in this Article 10 with respect to the Securities, to the payment of all Senior Indebtedness which may at the time be outstanding; provided, however, that (i) Senior Indebtedness is assumed by the new corporation, if any, resulting from any such reorganization or readjustment, and (ii) the rights of the holders of the Senior Indebtedness are not, without the consent of such holders, altered by such reorganization or readjustment. The consolidation of the Company with, or the merger of the Company into, another person or the liquidation or dissolution of that Company following the conveyance or transfer of all or substantially all of its assets to another person upon the terms and conditions set forth in Article 5 shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshaling of assets and liabilities of the Company for the purposes of this Section 10.02 if the person formed by such consolidation or - 39 - into which the Company is merged or the person which acquires by conveyance or transfer all or substantially all of the assets of the Company, as the case may be, shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions set forth in Article 5. SECTION 10.03. Acceleration of Securities. In the event that any Securities are declared due and payable before their Stated Maturity pursuant to Section 6.02, then and in such event the Company shall promptly notify holders of Senior Indebtedness of such acceleration. The Company may not pay the Securities until 120 days have passed after such acceleration occurs and may thereafter pay the Securities if this Article 10 permits the payment at that time. In the event that, notwithstanding the foregoing, the Company shall make any payment to the Trustee or the Holder of any Securities prohibited by the foregoing provisions of this Section 10.03, and if such facts then shall have been known or thereafter shall have been made known to the Trustee as provided in Section 10.10 or such Holder, as the case may be, pursuant to the terms of this Indenture, then and in such event such payment shall be paid over and delivered forthwith to the Company by or on behalf of the person holding such payment for the benefit of the holders of Senior Indebtedness. The provisions of this Section 10.03 shall not apply to any payment with respect to which Section 10.02 would be applicable. SECTION 10.04. Default on Senior Indebtedness. The Company may not make any payment of the Principal Amount, Issue Price, accrued Original Issue Discount, Redemption Price, Purchase Price or interest, if any, in respect of the Securities and may not acquire any Securities for cash or property (except as otherwise provided by Article 11 and other than for Capital Stock (including cash in lieu of any fractional shares) of the Company) if: (1) a default on Senior Indebtedness occurs and is continuing that permits holders of such Senior Indebtedness to accelerate its maturity; and (2) the default is the subject of judicial proceedings or the Company receives a notice of default thereof from any person who may give such notice pursuant to the instrument evidencing or document governing such Senior Indebtedness. If the Company receives any such notice, then a similar notice received within nine months thereafter relating to the same default on the same issue of Senior Indebtedness shall not be effective for purposes of this Section 10.04. The Company may resume payments on the Securities and may acquire Securities if and when: (A) the default is cured or waived; or (B) 120 or more days pass after the receipt by the Company of the notice described in clause (2) above and the default is not then the subject of judicial proceedings; and - 40 - this Article 10 otherwise permits the payment or acquisition at that time. In the event that, notwithstanding the foregoing, the Company shall make any payment to the Trustee or the Holder of any Security prohibited by the foregoing provisions of this Section 10.04, and if such fact then shall have been known or thereafter shall have been made known to the Trustee or such Holder, as the case may be, pursuant to the terms of this Indenture, then and in such event such payment shall (to the extent permitted by law) be paid over and delivered forthwith to the Company by or on behalf of the person holding such payment for the benefit of the holders of the Senior Indebtedness. Nothing contained in this Article 10 or elsewhere in this Indenture or in any of the Securities shall prevent the conversion by a Holder of any Securities into Class A Common Stock in accordance with the provisions for conversion of such securities set forth in this Indenture, including the payment of cash in lieu of fractional shares of Class A Common Stock in accordance with Article 11, or in any of such Securities in the event of an occurrence of the events described in clauses (1) and (2) of this Section 10.04. The provisions of this Section 10.04 shall not apply to any payment with respect to which Section 10.02 would be applicable. SECTION 10.05. Payment Permitted if no Default. Nothing contained in this Article 10 or elsewhere in this Indenture or in any of the Securities shall prevent (a) the Company, at any time except during the pendency of any case, proceeding, dissolution, liquidation or other winding up, assignment for the benefit of creditors or other marshaling of assets and liabilities of the Company referred to in Section 10.02 or under the conditions described in Section 10.03 or 10.04, from making payments at any time of the Principal Amount, Issue Price, accrued Original Issue Discount, Redemption Price, Purchase Price or interest, if any, as the case may be, in respect of the Securities, or (b) the application by the Trustee or the retention by any Holder of any money deposited with it hereunder to the payment of or on account of the Principal Amount, Issue Price, accrued Original Issue Discount, Redemption Price, Purchase Price or interest, if any, as the case may be, in respect of the Securities if the Trustee did not have, at the time provided in the proviso to the first paragraph of Section 10.10, notice that such payment would have been prohibited by the provisions of this Article 10. SECTION 10.06. Subrogation to Rights of Holders of Senior Indebtedness. Subject to the payment in full of all Senior Indebtedness, the Holders of the Securities shall be subrogated to the extent of the payments or distributions made to the holders of such Senior Indebtedness pursuant to the provisions of this Article 10 (equally and ratably with the holders of all Debt of the Company which by its express terms is subordinated to Debt 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 such Senior Indebtedness to receive payments or distributions of cash, property or securities applicable to the Senior Indebtedness until the Principal Amount, Issue Price, accrued Original Issue Discount, Redemption Price, Purchase Price or interest, if any, as the case may be, in respect of the Securities shall be - 41 - paid in full. For purposes of such subrogation, no payments or distributions to the holders of the Senior Indebtedness of any cash, property or securities to which the Holders of the Securities or the Trustee would be entitled except for the provisions of this Article 10, and no payments pursuant to the provisions of this Article 10 to the Company or to the holders of Senior Indebtedness by Holders of the Securities or the Trustee, shall, as between the Company, its creditors other than holders of Senior Indebtedness and the Holders of the Securities, be deemed to be a payment or distribution by the Company to or on account of the Senior Indebtedness. SECTION 10.07. Provisions Solely to Define Relative Rights. The provisions of this Article 10 are and are intended solely for the purpose of defining the relative rights of the Holders of the Securities, on one hand, and the holders of Senior Indebtedness, on the other hand. Nothing contained in this Article 10 or elsewhere in this Indenture or in the Securities is intended to or shall (a) impair, as between the Company and the Holders of the Securities, the obligation of the Company, which is absolute and unconditional, to pay to the Holders of the Securities the Principal Amount, Issue Price, accrued Original Issue Discount, Redemption Price, Purchase Price and interest, if any, as the case may be, in respect of the Securities as and when the same shall became due and payable in accordance with the terms of the Securities and this Indenture and which, subject to the rights under this Article 10 of the holders of Senior Indebtedness, is intended to rank equally with all other general obligations of the Company; or (b) affect the relative rights against the Company of the Holders of the Securities and creditors of the Company other than holders of Senior Indebtedness; or (c) 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 10 of the holders of Senior Indebtedness to receive cash, property or securities otherwise payable or deliverable to the Trustee or such Holder. Section 10.08. Trustee to Effectuate Subordination. Each Holder of a Security by such Holder's acceptance thereof authorizes and directs the Trustee on such Holder's behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this Article 10 and appoints the Trustee such Holder's attorney-in-fact for any and all such purposes. Section 10.09. No Waiver of Subordination Provisions. No right of any present or future holder of any Senior Indebtedness to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the Company with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof any such holder may have or be otherwise charged with. - 42 - Without in any way limiting the generality of the foregoing paragraph, the holders of Senior Indebtedness may, at any time and, from time to time, without the consent of, or notice to, the Trustee or the Holders of the Securities, without incurring responsibility to the Holders of the Securities and without impairing or releasing the subordination provided in this Article 10 or the obligations hereunder of the Holders of the Securities to the holders of Senior Indebtedness, do any one or more of the following: (i) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, Senior Indebtedness, or otherwise amend or supplement in any manner Senior Indebtedness or any instrument evidencing the same or any agreement under which Senior Indebtedness is outstanding; (ii) sell, exchange, release or otherwise dispose of any property pledged, mortgaged or otherwise securing Senior Indebtedness; (iii) release any person liable in any manner for the collection of Senior Indebtedness; and (iv) exercise or refrain from exercising any rights against the Company or any other person. SECTION 10.10. Notice to Trustee. The Company shall give prompt written notice to the Trustee of any fact known to the Company which would prohibit the making of any payment to or by the Trustee in respect of the Securities. Failure to give such notice shall not affect the subordination of the Securities to Senior Indebtedness. Notwithstanding the provisions of this Article 10 or any other provision of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts which would prohibit the making of any payment to or by the Trustee in respect of the Securities, unless and until the Trustee shall have received written notice thereof at the address specified in Section 12.02 from the Company or a holder of Senior Indebtedness or from any trustee or agent therefor; and, prior to the receipt of any such written notice, the Trustee, subject to the provisions of Section 7.01, shall be entitled in all respects to assume that no such facts exist; provided, however, that if a Trust Officer of the Trustee shall not have received, at least three Business Days prior to the date upon which by the terms hereof any such money may become payable for any purpose (including, without limitation, the payment of the Principal Amount, Issue Price, accrued Original Issue Discount, Redemption Price, Purchase Price or interest, if any, as the case may be, in respect of any Security), the notice with respect to such money provided for in this Section 10.10, then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such money and to apply the same to the purpose for which such money was received and shall not be affected by any notice to the contrary which may be received by it within three Business Days prior to such date. Subject to the provisions of Section 7.01, the Trustee shall be entitled to rely on the delivery to it of a written notice by a person representing himself to be a holder of Senior Indebtedness (or a trustee or agent on behalf of such holder) to establish that such notice has been given by a holder of Senior Indebtedness (or a trustee or agent on behalf of any such holder). In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Article 10, the Trustee may request such person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such person, the extent to which such person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such person under this Article 10, and if such evidence is not furnished, the Trustee may defer any payment which it may be required to make for the benefit - 43 - of such person pursuant to the terms of this Indenture pending judicial determination as to the right of such person to receive such payment. SECTION 10.11. Reliance on Judicial Order or Certificate of Liquidating Agent. Upon any payment or distribution of assets of the Company referred to in this Article 10, the Trustee, subject to the provisions of Section 7.01, and the Holders of the Securities shall be entitled to rely upon any order or decree entered by any court of competent jurisdiction in which such insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution, winding up or similar case or proceeding is pending, or a certificate of the trustee in bankruptcy, liquidating trustee, Custodian, receiver, assignee for the benefit of creditors, agent or other person making such payment or distribution, delivered to the Trustee or to the Holders of Securities, for the purpose of ascertaining the persons entitled to participate in such payment or distribution, the holders of Senior Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article 10. SECTION 10.12. Trustee Not Fiduciary for Holders of Senior Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and shall not be liable to any such holders if the Trustee shall in good faith mistakenly pay over or distribute to Holders of Securities or to the Company or to any other person cash, property or securities to which any holders of Senior Indebtedness shall be entitled by virtue of this Article 10 or otherwise. The Trustee shall not be charged with knowledge of the existence of Senior Indebtedness or of any facts that would prohibit any payment hereunder unless a Trust Officer of the Trustee shall have received notice to that effect at the address of the Trustee set forth in Section 12.02. With respect to the holders of Senior Indebtedness, the Trustee undertakes to perform or to observe only such of its covenants or obligations as are specifically set forth in this Article 10 and no implied covenants or obligations with respect to holders of Senior Indebtedness shall be read into this Indenture against the Trustee. SECTION 10.13. Rights of Trustee as Holder of Senior Indebtedness; Preservation of Trustee's Rights. The Trustee in its individual capacity shall be entitled to all the rights set forth in this Article 10 with respect to any Senior Indebtedness which may at any time be held by it, to the same extent as any other holder of Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of its rights as such holder. Nothing in this Article 10 shall apply to claims of, or payments to, the Trustee under or pursuant to Section 7.07. SECTION 10.14. Article 10 Applicable to Paying Agents. In case at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term "Trustee" as used in this Article 10 shall in such case (unless the context otherwise requires) be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named in this Article 10 in addition to or in place of the Trustee; provided, however, that Sections 10.10 - 44 - and 10.12 shall not apply to the Company or any Affiliate of the Company if it or such Affiliate acts as Paying Agent. ARTICLE 11 CONVERSION SECTION 11.01. Conversion Privilege. A Holder of a Security may convert such Security into Class A Common Stock at any time during the period stated in paragraph 9 of the Securities. The number of shares of Class A Common Stock issuable upon conversion of a Security per $1,000 of Principal Amount thereof (the ''Conversion Rate") shall be that set forth in paragraph 9 in the Securities, subject to adjustment as herein set forth. A Holder may convert a portion of the Principal Amount of a Security if the portion is $l,000 or an integral multiple of $1,000. Provisions of this Indenture that apply to conversion of all of a Security also apply to conversion of a portion of a Security. "Quoted Price", on a particular day, means the last reported per share sales price (or, if no sales price is reported, the average of the bid and asked prices or, if more than one in either case, the average of the average bid and average asked prices) on such day of the Class A Common Stock on the New York Stock Exchange or, in the event shares of Class A Common Stock are not listed on the New York Stock Exchange, such other national or regional stock exchange upon which the Class A Common Stock is listed, or, if the shares of Class A Common Stock are not listed on a national or regional stock exchange, as quoted on the National Association of Securities Dealers Automated Quotation System or by the National Quotation Bureau, Incorporated. In the absence of one or more such quotations, the Company shall be entitled to determine the Quoted Price on the basis of such quotations as it considers appropriate. "Average Quoted Price" means the average of the Quoted Prices of the Class A Common Stock for the shortest of (i) 30 consecutive trading days ending on the last full trading day prior to the Time of Determination with respect to the rights, warrants or options or distribution in respect of which the Average Quoted Price is being calculated, or (ii) the period (x) commencing on the date next succeeding the first public announcement of (a) the issuance of rights, warrants or options or (b) the distribution, in each case, in respect of which the Average Quoted Price is being calculated and (y) proceeding through the last full trading day prior to the Time of Determination with respect to the rights, warrants or options or distribution in respect of which the Average Quoted Price is being calculated, or (iii) the period, if any, (x) commencing on the date next succeeding the Ex-Dividend Time with respect to the next preceding (a) issuance of rights, or warrants or options or (b) distribution, in each case, for which - 45 - an adjustment is required by the provisions of Section 11.06(4), 11.07 or 11.08 and (y) proceeding through the last full trading day prior to the Time of Determination with respect to the rights, warrants or options or distribution in respect of which the Average Quoted Price is being calculated. In the event that the Ex-Dividend Time (or in the case of a subdivision, combination or reclassification, the effective date with respect thereto) with respect to a dividend, subdivision, combination or reclassification to which "Section 11.06(1), (2), (3) or (5) applies occurs during the period applicable for calculating "Average Quoted Price" pursuant to the definition in the preceding sentence, "Average Quoted Price" shall be calculated for such period in a manner determined by the Board of Directors to reflect the impact of such dividend, subdivision, combination or reclassification on the Quoted Price of the Class A Common Stock during such period. "Time of Determination" means the time and date of the earlier of (i) the determination of stockholders entitled to receive rights, warrants or options or a distribution, in each case, to which Sections 11.07 and 11.08 apply and (ii) the time ("Ex-Dividend Time") immediately prior to the commencement of "ex-dividend" trading for such rights, warrants or options or distribution on the New York Stock Exchange or such other national or regional exchange or market on which the Class A Common Stock is then listed or quoted. SECTION 11.02. Conversion Procedure. To convert a Security a Holder must satisfy the requirements in paragraph 9 of the Securities. The date on which the Holder satisfies all those requirements is the conversion date (the "Conversion Date"). As soon as practicable after the Conversion Date, the Company shall deliver to the Holder, through the Conversion Agent, a certificate for the number of full shares of Class A Common Stock issuable upon the conversion and cash in lieu of any fractional share determined pursuant to Section 11.03. The person in whose name the certificate is registered shall be treated as a stockholder of record on and after the Conversion Date; provided, however, that no surrender of a Security on any date when the stock transfer books of the Company shall be closed shall be effective to constitute the person or persons entitled to receive the shares of Class A Common Stock upon such conversion as the record holder or holders of such shares of Class A Common Stock on such date, but such surrender shall be effective to constitute the person or persons entitled to receive such shares of Class A Common Stock as the record holder or holders thereof for all purposes at the close of business on the next succeeding day on which such stock transfer books are open; provided further that such conversion shall be at the Conversion Rate in effect on the date that such Security shall have been surrendered for conversion, as if the stock transfer books of the Company had not been closed. Upon conversion of a Security, such person shall no longer be a Holder of such Security. No payment or adjustment will be made for dividends on or other distribution with respect to any Class A Common Stock except as provided in this Article 11. On conversion of a Security, that portion of accrued Original Issue Discount attributable to the period from the Issue Date of the Security to the Conversion Date with respect to the converted Security shall not be cancelled, extinguished or forfeited, but rather shall be deemed to be paid in full to the - 46 - Holder thereof through delivery of the Class A Common Stock (together with the cash payment, if any, in lieu of fractional shares) in exchange for the Security being converted pursuant to the provisions hereof. If the Holder converts more than one Security at the same time, the number of shares of Class A Common Stock issuable upon the conversion shall be based on the total Principal Amount of the Securities converted. Upon surrender of a Security that is converted in part, the Company shall execute, and the Trustee shall authenticate and deliver to the Holder, a new Security in an authorized denomination equal in Principal Amount to the unconverted portion of the Security surrendered. If the last day on which a Security may be converted is a Legal Holiday in a place where a Conversion Agent is located, the Security may be surrendered to that Conversion Agent on the next succeeding day that is not a Legal Holiday. SECTION 11.03. Fractional Shares. The Company will not issue a fractional share of Class A Common Stock upon conversion of a Security. Instead, the Company will deliver cash for the current market value of the fractional share. The current market value of a fractional share shall be determined to the nearest 1/1000th of a share by multiplying the Quoted Price, on the last trading day prior to the Conversion Date, of a full share by the fractional amount and rounding the product to the nearest whole cent. SECTION 11.04. Taxes on Conversion. If a Holder converts a Security, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of shares of Class A Common Stock upon the conversion. However, the Holder shall pay any such tax which is due because the Holder requests the shares to be issued in a name other than the Holder's name. The Conversion Agent may refuse to deliver the certificates representing the Class A Common Stock being issued in a name other than the Holder's name until the Conversion Agent receives a sum sufficient to pay any tax which will be due because the shares are to be issued in a name other than the Holder's name. Nothing herein shall preclude any tax withholding required by law or regulations. SECTION 11.05. Company to Provide Stock. The Company shall, prior to issuance of any Securities hereunder, and from time to time as may be necessary, reserve out of its authorized but unissued Class A Common Stock a sufficient number of shares of Class A Common Stock to permit the conversion of the Securities for shares of Class A Common Stock. All shares of Class A Common Stock delivered upon conversion of the Securities shall be newly issued shares or treasury shares, shall be duly and validly issued and fully paid and nonassessable and shall be free from preemptive rights and free of any lien or adverse claim. The Company will endeavor promptly to comply with all Federal and state securities laws regulating the offer and delivery of shares of Class A Common Stock upon conversion of Securities, if any, and will list or cause to have - 47 - quoted such shares of Class A Common Stock on each national securities exchange or in the over-the-counter market or such other market on which the Class A Common Stock is then listed or quoted. SECTION 11.06. Adjustment for Change in Capital Stock. If, after the Issue Date of the Securities, the Company: (1) pays a dividend or makes a distribution on its Class A Common Stock in shares of its Class A Common Stock; (2) subdivides its outstanding shares of Class A Common Stock into a greater number of shares; (3) combines its outstanding shares of Class A Common Stock into a smaller number of shares; (4) pays a dividend or makes a distribution on its Class A Common Stock in shares of its Capital Stock (other than Class A Common Stock or rights, warrants, or options for its Capital Stock); or (5) issues by reclassification of its Class A Common Stock any shares of its Capital Stock (other than rights, warrants, or options for its Capital Stock), then the conversion privilege and the Conversion Rate in effect immediately prior to such action shall be adjusted so that the Holder of a Security thereafter converted may receive the number of shares of Capital Stock of the Company which such Holder would have owned immediately following such action if such Holder had converted the Security immediately prior to such action. The adjustment shall become effective immediately after the record date in the case of a dividend or distribution and immediately after the effective date in the case of a subdivision, combination or reclassification. If after an adjustment a Holder of a Security upon conversion of such Security may receive shares of two or more classes or series of Capital Stock of the Company, the Conversion Rate shall thereafter be subject to adjustment upon the occurrence of an action taken with respect to any such class or series of Capital Stock as is contemplated by this Article 11 with respect to the Class A Common Stock, on terms comparable to those applicable to Class A Common Stock in this Article 11. SECTION 11.07. Adjustment for Rights Issue. If after the Issue Date of the Securities, the Company distributes any rights, warrants or options to all holders of its Class A Common Stock entitling them, for a period expiring within 60 days after the record date for such distribution, to purchase shares of Class A Common Stock at a price per share less than the Quoted Price as of the Time of Determination, the Conversion Rate shall be adjusted in accordance with the formula: - 48 - (O + N) R' = R X --------------------- (O + (N X P) / M) where: R' = the adjusted Conversion Rate. R = the current Conversion Rate. O = the number of shares of Class A Common Stock outstanding on the record date for the distribution to which this Section 11.07 is being applied. N = the number of additional shares of Class A Common Stock offered pursuant to the distribution. P = the offering price per share of the additional shares. M = the Average Quoted Price, minus, in the case of (i) a distribution to which Section 11.06(4) applies or (ii) a distribution to which Section 11.08 applies, for which, in each case, (x) the record date shall occur on or before the record date for the distribution to which this Section 11.07 applies and (y) the Ex-Dividend Time shall occur on or after the date of the Time of Determination for the distribution to which this Section 11.07 applies, the fair market value (on the record date for the distribution to which this Section 11.07 applies) of the (1) Capital Stock of the Company distributed in respect of each share of Class A Common Stock in such Section 11.06(4) distribution and (2) assets of the Company or debt securities or any rights, warrants or options to purchase securities of the Company distributed in respect of each share of Class A Common Stock in such Section 11.08 distribution. The Board of Directors shall determine fair market values for the purposes of this Section 11.07. The adjustment shall become effective immediately after the record date for the determination of shareholders entitled to receive the rights, warrants or options to which this Section 11.07 applies. If all of the shares of Class A Common Stock issuable upon exercise or conversion of such rights, warrants or options have not been issued when such rights, warrants or options expire, then the Conversion Rate shall promptly be readjusted to the Conversion Rate which would then be in effect had the adjustment upon the issuance of such rights, warrants or options been made on the basis of the actual number of shares of Class A Common Stock issued upon the exercise of such rights, warrants or options. No adjustment shall be made under this Section 11.07 if the application of the formula stated above in this Section 11.07 would result in a value of R' that is less than the value of R. SECTION 11.08. Adjustment for Other Distributions. If, after the Issue Date of the Securities, the Company distributes to all holders of its - 49 - Class A Common Stock any of its assets, or debt securities or any rights, warrants or options to purchase securities of the Company (including securities or cash, but excluding (x) distributions of Capital Stock referred to in Section 11.06 and distributions of rights, warrants or options referred to in Section 11.07 and (y) cash dividends or other cash distributions that are paid out of consolidated current net earnings or earnings retained in the business as shown on the books of the Company unless such cash dividends or other cash distributions are "Extraordinary Cash Dividends"), the Conversion Rate shall be adjusted, subject to the provisions of the last paragraph of this Section 11.08, in accordance with the formula: M R' = R X --------- M - F where: R' = the adjusted Conversion Rate. R = the current Conversion Rate. M = the Average Quoted Price, minus, in the case of a distribution to which Section 11.06(4) applies, for which (i) the record date shall occur on or before the record date for the distribution to which this Section 11.08 applies and (ii) the Ex-Dividend Time shall occur on or after the date of the Time of Determination for the distribution to which this Section 11.08 applies, the fair market value (on the record date for the distribution to which this Section 11.08 applies) of any Capital Stock of the Company distributed in respect of each share of Class A Common Stock in such Section 11.06(4) distribution. F = the fair market value (on the record date for the distribution to which this Section 11.08 applies) of the assets, securities, rights, warrants or options to be distributed in respect of each share of Class A Common Stock in the distribution to which this Section 11.08 is being applied (including, in the case of cash dividends or other cash distributions giving rise to an adjustment, all such cash distributed concurrently). The Board of Directors shall determine fair market values for the purposes of this Section 11.08. The adjustment shall become effective immediately after the record date for the determination of shareholders entitled to receive the distribution to which this Section 11.08 applies. For purposes of this Section 11.08, the term "Extraordinary Cash Dividend" shall mean any cash dividend with respect to the Class A Common Stock the amount of which, together with the aggregate amount of cash dividends on the - 50 - Class A Common Stock to be aggregated with such cash dividend in accordance with the provisions of this paragraph, equals or exceeds the threshold percentages set forth in item (i) or (ii) below: (i) If, upon the date prior to the Ex-Dividend Time with respect to a cash dividend on the Class A Common Stock, the aggregate amount of such cash dividend together with the amounts of all cash dividends on the Class A Common Stock with Ex-Dividend Times occurring in the 85 consecutive day period ending on the date prior to the Ex-Dividend Time with respect to the cash dividend to which this provision is being applied equals or exceeds on a per share basis 12.5% of the average of the Quoted Prices during the period beginning on the date after the first such Ex-Dividend Time in such period and ending on the date prior to the Ex-Dividend Time with respect to the cash dividend to which this provision is being applied (except that if no other cash dividend has had an Ex-Dividend Time occurring in such period, the period for calculating the average of the Quoted Prices shall be the period commencing 85 days prior to the date prior to the Ex-Dividend Time with respect to the cash dividend to which this provision is being applied), such cash dividend together with each other cash dividend with an Ex-Dividend Time occurring in such 85 day period shall be deemed to be an Extraordinary Cash Dividend and for purposes of applying the formula set forth above in this Section 11.08, the value of "F" shall be equal to (w) the aggregate amount of such cash dividend together with the amounts of the other cash dividends with Ex-Dividend Times occurring in such period minus (x) the aggregate amount of such other cash dividends with Ex-Dividend Times occurring in such period for which a prior adjustment in the Conversion Rate was previously made under this Section 11.08. (ii) If, upon the date prior to the Ex-Dividend Time with respect to a cash dividend on the Class A Common Stock, the aggregate amount of such cash dividend together with the amounts of all cash dividends on the Class A Common Stock with Ex-Dividend Times occurring in the 365 consecutive day period ending on the date prior to the Ex-Dividend Time with respect to the cash dividend to which this provision is being applied equals or exceeds on a per share basis 25% of the average of the Quoted Prices during the period beginning on the date after the first such Ex-Dividend Time in such period and ending on the date prior to the Ex-Dividend Time with respect to the cash dividend to which this provision is being applied (except that if no other cash dividend has had an Ex-Dividend Time occurring in such period, the period for calculating the average of the Quoted Prices shall be the period commencing 365 days prior to the date prior to the Ex-Dividend Time with respect to the cash dividend to which this provision is being applied), such cash dividend together with each other cash dividend with an Ex-Dividend Time occurring in such 365 day period shall be deemed to be an Extraordinary Cash Dividend and for purposes of applying the formula set forth above in this Section 11.08, the value of "F" shall be equal to (y) the aggregate amount of such cash dividend together with the amounts of the other cash dividends with Ex-Dividend Times occurring in such period minus (z) the aggregate amount of such other cash dividends with Ex-Dividend Times occurring in such period for which a prior adjustment in the Conversion Rate was previously made under this Section 11.08. - 51 - In making the determinations required by items (i) and (ii) above, the amount of cash dividends paid on a per share basis and the average of the Quoted Prices, in each case during the period specified in item (i) or (ii) above, as applicable, shall be appropriately adjusted to reflect the occurrence during such period of any event described in Section 11.06. In the event that, with respect to any distribution to which this Section 11.08 would otherwise apply, the difference ''M-F", as defined in the above formula is less than $1.00 or "F" is greater than "M", then the adjustment provided by this Section 11.08 shall not be made and in lieu thereof the provisions of Section 11.14 shall apply to such distribution. SECTION 11.09. When Adjustment May Be Deferred. No adjustment in the Conversion Rate need be made unless the adjustment would require an increase or decrease of at least 1% in the Conversion Rate. Any adjustments that are not made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article 11 shall be made to the nearest cent or to the nearest 1/1,000th of a share, as the case may be, with one-half of a cent and 5/10,000ths of a share being rounded upwards. SECTION 11.10. When No Adjustment Required. No adjustment need be made for a transaction referred to in Section 11.06, 11.07, 11.08 or 11.14 if Securityholders are to participate in the transaction on a basis and with notice that the Board of Directors determines to be fair and appropriate in light of the basis and notice on which holders of Class A Common Stock participate in the transaction. No adjustment need be made for rights to purchase Class A Common Stock pursuant to a Company plan for reinvestment of dividends or interest or for rights to purchase Capital Stock pursuant to any future dividend or distribution which the Company determines to be comparable in purpose and in effect to the dividend and subsequent distribution of Rights contemplated by the Rights Agreement. No adjustment need be made for a change in the par value or no par value of the Class A Common Stock. To the extent the Securities become convertible into cash pursuant to the terms of Section 11.08 or 11.14, no adjustment need be made thereafter as to the cash. Interest will not accrue on the cash. SECTION 11.11. Notice of Adjustment. Whenever the Conversion Rate is adjusted, the Company shall promptly mail to Securityholders a notice of the adjustment. The Company shall file with the Trustee and the Conversion Agent such notice and a certificate from the Company's independent public accountants briefly stating the facts requiring the adjustment and the manner of computing it. The certificate shall be conclusive evidence that the adjustment is correct. Neither the Trustee nor any Conversion Agent shall be under any duty or responsibility with respect to any such certificate except to exhibit the same to any Holder desiring inspection thereof. - 52 - SECTION 11.12. Voluntary Increase. The Company from time to time may increase the Conversion Rate by any amount for any period of time. Whenever the Conversion Rate is increased, the Company shall mail to Securityholders and file with the Trustee and the Conversion Agent a notice of the increase. The Company shall mail the notice at least 15 days before the date the increased Conversion Rate takes effect. The notice shall state the increased Conversion Rate and the period it will be in effect. A voluntary increase of the Conversion Rate does not change or adjust the Conversion Rate otherwise in effect for purposes of Section 11.06, 11.07 or 11.08. SECTION 11.13. Notice of Certain Transactions. If: (1) the Company takes any action that would require an adjustment in the Conversion Rate pursuant to Section 11.06, 11.07 or 11.08 (unless no adjustment is to occur pursuant to Section 11.10); or (2) the Company takes any action that would require a supplemental indenture pursuant to Section 11.14; or (3) there is a liquidation or dissolution of the Company; then the Company shall mail to Securityholders and file with the Trustee and the Conversion Agent a notice stating the proposed record date for a dividend or distribution or the proposed effective date of a subdivision, combination, reclassification, consolidation, merger, binding share exchange, transfer, liquidation or dissolution. The Company shall file and mail the notice at least 15 days before such date. Failure to file or mail the notice or any defect in it shall not affect the validity of the transaction. Section 11.14. Reorganization of Company; Special Distribution. If the Company is a party to a transaction subject to Section 5.01 or a merger or binding share exchange which reclassifies or changes its outstanding Class A Common Stock, the person obligated to deliver securities, cash or other assets upon conversion of Securities shall enter into a supplemental indenture. If the issuer of securities deliverable upon conversion of Securities is an Affiliate of the successor Company, that issuer shall join in the supplemental indenture. The supplemental indenture shall provide that the Holder of a Security may convert it into the kind and amount of securities, cash or other assets which such Holder would have received immediately after the consolidation, merger, binding share exchange or transfer if such Holder had converted the Security immediately before the effective date of the transaction, assuming (to the extent applicable) that such Holder (i) was not a constituent person or an Affiliate of a constituent person to such transaction; (ii) made no election with respect thereto; and (iii) was treated alike with the plurality of - 53 - non-electing Holders. The supplemental indenture shall provide for adjustments which shall be as nearly equivalent as may be practical to the adjustments provided for in this Article 11. The successor Company shall mail to Securityholders a notice briefly describing the supplemental indenture. If this Section applies, neither Section 11.06 nor 11.07 applies. If the Company makes a distribution to all holders of its Class A Common Stock of any of its assets, or debt securities or any rights, warrants or options to purchase securities of the Company that, but for the provisions of the last paragraph of Section 11.08, would otherwise result in an adjustment in the Conversion Rate pursuant to the provisions of Section 11.08, then, from and after the record date for determining the holders of Class A Common Stock entitled to receive the distribution, a Holder of a Security that converts such Security in accordance with the provisions of this Indenture would upon such conversion be entitled to receive, in addition to the shares of Class A Common Stock into which the Security is convertible, the kind and amount of securities, cash or other assets comprising the distribution that such Holder would have received if such Holder had converted the Security immediately prior to the record date for determining the holders of Class A Common Stock entitled to receive the distribution. SECTION 11.15. Company Determination Final. Any determination that the Company or the Board of Directors must make pursuant to Section 11.03, 11.06, 11.07, 11.08, 11.09, 11.10, 11.14 or 11.17 is conclusive. SECTION 11.16. Trustee's Adjustment Disclaimer. The Trustee has no duty to determine when an adjustment under this Article 11 should be made, how it should be made or what it should be. The Trustee has no duty to determine whether a supplemental indenture under Section 11.14 need be entered into or whether any provisions of any supplemental indenture are correct. The Trustee shall not be accountable for and makes no representation as to the validity or value of any securities or assets issued upon conversion of Securities. The Trustee shall not be responsible for the Company's failure to comply with this Article 11. Each Conversion Agent shall have the same protection under this Section 11.16 as the Trustee. SECTION 11.17. Simultaneous Adjustments. In the event that this Article 11 requires adjustments to the Conversion Rate under more than one of Sections 11.06(4), 11.07 or 11.08, and the record dates for the distributions giving rise to such adjustments shall occur on the same date, then such adjustments shall be made by applying, first, the provisions of Section 11.06, second, the provisions of Section 11.08 and, third, the provisions of Section 11.07. SECTION 11.18. Successive Adjustments. After an adjustment to the Conversion Rate under this Article 11, any subsequent event requiring an adjustment under this Article 11 shall cause an adjustment to the Conversion Rate as so adjusted. SECTION 11.19. Rights Issued in Respect of Class A Common Stock Issued Upon Conversion. Each share of Class A Common Stock issued upon conversion of Securities pursuant to this Article 11 shall be entitled to receive the appropriate number of Rights, if any, and the certificates representing the - 54 - Class A Common Stock issued upon such conversion shall bear such legends, if any, in each case as provided by and subject to the terms of the Rights Agreement as in effect at the time of such conversion. Notwithstanding anything else to the contrary in this Article 11, there shall not be any adjustment to the conversion privilege or Conversion Rate as a result of (i) the distribution of separate certificates representing the Rights, (ii) the occurrence of certain events entitling holders of Rights to receive, upon exercise thereof, preferred stock of the Company or Capital Stock of another corporation or (iii) the exercise of such Rights in accordance with the Rights Agreement. ARTICLE 12 MISCELLANEOUS SECTION 12.01. Trust Indenture Act Controls. If any provision of this Indenture limits, qualifies or conflicts with another provision which is required to be included in this Indenture by the TIA, the required provision shall control. SECTION 12.02. Notices. Any notice or communication shall be in writing and delivered in person or mailed by first-class mail, postage prepaid, addressed as follows: if to the Company: Bergen Brunswig Corporation 4000 Metropolitan Drive Orange, California 92668 Telecopier: Telephone: Attention: Chief Financial Officer, with a copy to Secretary if to the Trustee: Chemical Trust Company of California 50 California Street, 10th Floor San Francisco, California 94111 Telecopier: 415-989-5241 Telephone: 415-954-9507 Attention: Corporate Trust Administration The Company or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications. Any notice or communication given to a Securityholder shall be mailed to the Securityholder, by first class mail, postage prepaid, at the - 55 - Securityholder's address as it appears on the registration books of the Registrar and shall be sufficiently given if so mailed within the time prescribed. The Trustee shall transmit to Securityholders such reports concerning the Trustee and its actions under the Indenture as may be required pursuant to Section 313 of the Trust Indenture Act at the times and in the manner provided pursuant thereto, if so required. Failure to mail a notice or communication to a Securityholder or any defect in it shall not affect its sufficiency with respect to other Securityholders. If a notice or communication is mailed in the manner provided above, it is duly given, whether or not received by the addressee. If the Company mails a notice or communication to the Securityholders, it shall mail a copy to the Trustee and each Registrar, Paying Agent, Conversion Agent or co-registrar. SECTION 12.03. Communication by Holders with Other Holders. Securityholders may communicate pursuant to TIA Section 312(b) with other Securityholders with respect to their rights under this Indenture or the Securities. The Company, the Trustee, the Registrar, the Paying Agent, the Conversion Agent and anyone else shall have the protection of TIA Section 312(c). SECTION 12.04. Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee: (1) an Officers' Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and (2) an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with. SECTION 12.05. Statements Required in Certificate or Opinion. Each Officers' Certificate or Opinion of Counsel with respect to compliance with a covenant or condition provided for in this Indenture (other than certificates provided pursuant to Section 4.03 hereof) shall include: (1) a statement that each person making such Officers' Certificate or Opinion of Counsel has read such covenant or condition; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such Officers' Certificate or Opinion of Counsel are based; - 56 - (3) a statement that, in the opinion of each such person, he has made such examination or investigation as is necessary to enable such person to express an informed opinion as to whether or not such covenant or condition has been complied with; and (4) a statement that, in the opinion of such person, such covenant or condition has been complied with. SECTION 12.06. 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 12.07. Rules by Trustee, Paying Agent, Conversion Agent and Registrar. The Trustee may make reasonable rules for action by or a meeting of Securityholders. The Registrar, Conversion Agent and the Paying Agent may make reasonable rules for their functions. SECTION 12.08. Legal Holidays. A "Legal Holiday" is any day other than a Business Day. If any specified date (including a date for giving notice) is a Legal Holiday, the action shall be taken on the next succeeding day that is not a Legal Holiday, and to the extent applicable no Original Issue Discount or interest, if any, shall accrue for the intervening period. SECTION 12.09. Governing Law. The laws of the State of New York and the applicable federal laws of the United States shall govern this Indenture and the Securities without regard to principles of conflict of laws. SECTION 12.10. No Recourse Against Others. A director, officer, employee or stockholder, as such, of the Company shall not have any liability for any obligations of the Company under the Securities or this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Security, each Securityholder shall waive and release all such liability. The waiver and release shall be part of the consideration for the issue of the Securities. SECTION 12.11. Successors. All agreements of the Company in this Indenture and the Securities shall bind its successor. All agreements of the Trustee in this Indenture shall bind its successor. SECTION 12.12. Multiple Originals. The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. One signed copy is enough to prove this Indenture. IN WITNESS WHEREOF, the undersigned, being duly authorized, have executed this Indenture on behalf of the respective parties hereto as of the date first written above. - 57 - BERGEN BRUNSWIG CORPORATION By:________________________ Title: Attest: _____________________ Title: [SEAL] CHEMICAL TRUST COMPANY OF CALIFORNIA -------------------------, as Trustee By:________________________ Title:_____________________ Attest: _________________________ Title: _____________________ [SEAL] - 58 - EXHIBIT A [FORM OF FACE OF LYON] FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT WITH RESPECT TO EACH $1,000 OF PRINCIPAL AMOUNT OF THIS SECURITY IS $_____, THE ISSUE DATE IS _____________, 199___ AND THE YIELD TO MATURITY IS ___%. BERGEN BRUNSWIG CORPORATION Liquid Yield Option(TM) Note due _____ (Zero Coupon-Subordinated) No. Issue Date: __________ 199__ Original Issue Discount: $________________ Issue Price: $_____________ (for each $1,000 Principal Amount) (for each $1,000 Principal Amount) Bergen Brunswig Corporation, a corporation duly organized and existing under the laws of the State of New Jersey (hereinafter called the "Company"), for value received, hereby promises to pay to __________________________ or registered assigns, the Principal Amount of _________ Dollars ($_________) on ____________ __, 20__. This Security shall not bear interest except as specified on the other side of this Security. Original Issue Discount will accrue as specified on the other side of this Security. This Security is convertible as specified on the other side of this Security. All capitalized terms used herein without definition shall have the respective meanings assigned thereto in the Indenture referred to on the other side of this Security. Additional provisions of this Security are set forth on the other side of this Security. IN WITNESS WHEREOF, Bergen Brunswig Corporation has caused this instrument to be signed by its Chairman of the Board, or its President, or one of its Vice Presidents, manually or by facsimile, and a facsimile of its - --------------------------- (TM) Trademark of Merrill Lynch & Co., Inc. corporate seal to be imprinted hereon and attested by a manual or facsimile signature of its Secretary or one of its Assistant Secretaries. Dated: BERGEN BRUNSWIG CORPORATION By:______________________________ Title:_____________________ By:______________________________ Title:_____________________ (SEAL) TRUSTEE'S CERTIFICATE OF AUTHENTICATION ____________________________, as Trustee, certifies that this is one of the Securities referred to in the within mentioned Indenture. By:__________________________ Authorized Officer Dated:________________________ - 60 - [FORM OF REVERSE SIDE OF LYON] Liquid Yield Option Note(TM) due ____ (Zero Coupon-Subordinated) 1. Interest -------- This Security shall not bear interest, except that if the Principal hereof or any portion of such Principal is not paid when due (whether upon acceleration pursuant to Section 6.02 of the Indenture, upon the date set for payment of the Redemption Price pursuant to paragraph 5 hereof, upon the date set for payment of a Purchase Price pursuant to paragraph 6 hereof or upon the Stated Maturity of this Security), then in each such case the overdue amount shall bear interest at the rate of _____% per annum, compounded semiannually (to the extent that the payment of such interest shall be legally enforceable), which interest shall accrue from the date such overdue amount was due to the date payment of such amount, including interest thereon, has been made or duly provided for. All such interest shall be payable on demand. The accrual of such interest on overdue amounts shall be in lieu of, and not in addition to, the continued accrual of Original Issue Discount. Original Issue Discount (the difference between the Issue Price and the Principal Amount of the Security), in the period during which a Security remains outstanding, shall accrue at _____% per annum, on a semi-annual bond equivalent basis using a 360-day year composed of twelve 30-day months, commencing on the Issue Date of this Security. 2. Method of Payment ----------------- Subject to the terms and conditions of the Indenture, the Company will make payments in respect of the Securities to the persons who are registered Holders of Securities at the close of business on the Business Day preceding the Redemption Date or Stated Maturity, as the case may be, or at the close of business on a Purchase Date or Conversion Date, as the case may be. Holders must surrender Securities to a Paying Agent to collect such payments in respect of the Securities. The Company will pay cash amounts in money of the United States that at the time of payment is legal tender for payment of public and private debts. However, the Company may make such cash payments by check payable in such money. 3. Paying Agent, Conversion Agent and Registrar -------------------------------------------- Initially, Chemical Trust Company of California, as Trustee (the "Trustee"), will act as Paying Agent, Conversion Agent and Registrar. The Company may appoint and change any Paying Agent, Conversion Agent, Registrar or - ----------------------- (TM) Trademark of Merrill Lynch & Co., Inc. co-registrar without notice, other than notice to the Trustee. The Company or any of its Subsidiaries or any of their Affiliates may act as Paying Agent, Conversion Agent, Registrar or co-registrar. 4. Indenture --------- The Company issued the securities under an Indenture dated as of ________ __199__ (the "Indenture"), between the Company and the Trustee. The terms of the Securities include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended and as in effect from time to time (the "TIA"). Capitalized terms used herein and not defined herein have the meanings ascribed thereto in the Indenture. The Securities are subject to all such terms, and Securityholders are referred to the Indenture and the TIA for a statement of those terms. The Securities are general unsecured obligations of the Company limited to $___,000,000 aggregate Principal Amount (subject to Sections 2.02 and 2.07 of the Indenture). The Indenture does not limit other Debt of the Company, secured or unsecured, including Senior Indebtedness. 5. Redemption at the Option of the Company --------------------------------------- No sinking fund is provided for the Securities. The Securities are redeemable as a whole, or from time to time in part, at any time at the option of the Company at the Redemption Prices set forth below, provided that the Securities are not redeemable prior to _________ ___, _____. The table below shows Redemption Prices of a Security per $1,000 Principal Amount on the dates shown below and at Stated Maturity, which prices reflect accrued Original Issue Discount calculated to each such date. The Redemption Price of a Security redeemed between such dates would include an additional amount reflecting the additional Original Issue Discount accrued since the next preceding date in the table to the actual Redemption Date.
(1) (2) (3) Accrued Original Redemption LYON Issue Discount Price Redemption Date Issue Price at % (1) + (2) -------------------- ----------- ------------------ ------------ $ $ At Maturity $ $1,000.00
6. Purchase by the Company at the Option of the Holder --------------------------------------------------- Subject to the terms and conditions of the Indenture, the Company shall become obligated to purchase, at the option of the Holder, the Securities held by such Holder on the following Purchase Dates and at the following Purchase - 62 - Prices per $1,000 Principal Amount at Stated Maturity of such Securities, upon delivery of a Purchase Notice containing the information set forth in the Indenture, from the opening of business on the date that is 20 Business Days prior to such Purchase Date until the close of business on such Purchase Date and upon delivery of the Securities to the Paying Agent by the Holder as set forth in the Indenture. Such Purchase Prices may be paid, at the option of the Company, in cash or by the issuance and delivery of shares of Class A Common Stock of the Company, or in any combination thereof.
Purchase Date Purchase Price ------------- -------------- .......................... $_____________ .......................... $_____________ .......................... $_____________
Holders have the right to withdraw any Purchase Notice by delivering to the Paying Agent a written notice of withdrawal in accordance with the provisions of the Indenture. If cash (and/or securities if permitted under the Indenture) sufficient to pay a Purchase Price of all Securities or portions thereof to be purchased as of the Purchase Date is deposited with the Paying Agent on the Business Day following the Purchase Date, Original Issue Discount ceases to accrue on such Securities (or portions thereof) on and after such date, and the Holder thereof shall have no other rights as such other than the right to receive the Purchase Price upon surrender of such Security. 7. Notice of Redemption -------------------- Notice of redemption will be mailed at least 15 days but not more than 60 days before the Redemption Date to each Holder of Securities to be redeemed at the Holder's registered address. If money sufficient to pay the Redemption Price of all Securities (or portions thereof) to be redeemed on the Redemption Date is deposited with the Paying Agent prior to or on the Redemption Date, on and after such date Original Issue Discount ceases to accrue on such Securities or portions thereof. Securities in denominations larger than $1,000 of Principal Amount may be redeemed in part but only in integral multiples of $1,000 of Principal Amount. 8. Subordination ------------- The Securities are subordinated to all existing and future Senior Indebtedness. To the extent provided in the Indenture, Senior Indebtedness must be paid before the Securities may be paid. The Indenture does not limit the present or future amount of Senior Indebtedness the Company may have. The Company agrees, and each Securityholder by accepting a Security agrees, to the subordination and authorizes the Trustee to give it effect and appoints the Trustee as attorney-in-fact for such purpose. - 63 - 9. Conversion ---------- Subject to the next two succeeding sentences, a Holder of a Security may convert it into Class A Common Stock of the Company at any time before the close of business on ________, 20__. If the Security is called for redemption, the Holder may convert it at any time before the close of business on the Redemption Date. The number of shares of Class A Common Stock to be delivered upon conversion of a Security into Class A Common Stock per $1,000 of Principal Amount shall be equal to the Conversion Rate then in effect. A Security in respect of which a Holder has delivered a Purchase Notice exercising the option of such Holder to require the Company to purchase such Security may be converted only if the notice of exercise is withdrawn in accordance with the terms of the Indenture. The initial Conversion Rate is ______ shares of Class A Common Stock per $1,000 Principal Amount, subject to adjustment in certain events described in the Indenture. The Company will deliver cash or a check in lieu of any fractional share of Class A Common Stock. To convert, a Security a Holder must (1) complete and manually sign the conversion notice on the back of the Security (or complete and manually sign a facsimile of such notice) and deliver such notice to the Conversion Agent (or the office or agency referred to in Section 4.05 of the Indenture), (2) surrender the Security to the Conversion Agent, (3) furnish appropriate endorsements and transfer documents if required by the Conversion Agent, the Company or the Trustee and (4) pay any transfer or similar tax, if required. A Holder may convert a portion of a Security if the Principal Amount of such portion is $1,000 or an integral multiple of $1,000. No payment or adjustment will be made for dividends on the Class A Common Stock except as provided in the Indenture. On conversion of a Security, that portion of accrued Original Issue Discount attributable to the period from the Issue Date to the Conversion Date with respect to the converted Security shall not be cancelled, extinguished or forfeited, but rather shall be deemed to be paid in full to the Holder thereof through the delivery of the Class A Common Stock (together with any cash payment in lieu of fractional shares) in exchange for the Security being converted pursuant to the terms hereof. The Conversion Rate will be adjusted for dividends or distributions on Class A Common Stock payable in Class A Common Stock or other Capital Stock; subdivisions, combinations or certain reclassifications of Class A Common Stock; distributions to all holders of Class A Common Stock of certain rights to purchase Class A Common Stock for a period of 60 days at less than the Quoted Price at the Time of Determination; and distributions to such holders of assets or debt securities of the Company or certain rights to purchase securities of the Company (excluding certain cash dividends or distributions). However, no adjustment need be made if Securityholders may participate in the transaction or in certain other cases. The Company from time to time may voluntarily increase the Conversion Rate. If the Company is a party to a consolidation, merger or binding share exchange or a transfer of all or substantially all of its assets, or upon - 64 - certain distributions described in the Indenture, the right to convert a Security into Class A Common Stock may be changed into a right to convert it into securities, cash or other assets of the Company or another person. 10. Conversion Arrangement on Call for Redemption --------------------------------------------- Any Securities called for redemption, unless surrendered for conversion before the close of business on the Redemption Date, may be deemed to be purchased from the Holders of such Securities at an amount not less than the Redemption Price, together with accrued interest, if any, to the Redemption Date, by one or more investment bankers or other purchasers who may agree with the Company to purchase such Securities from the Holders and to make payment for such Securities to the Trustee in trust for such Holders. 11. Denominations; Transfer; Exchange --------------------------------- The Securities are in registered form, without coupons, in denominations of $1,000 of Principal Amount and integral multiples of $1,000. A Holder may transfer or exchange Securities in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. The Registrar need not transfer or exchange any Securities selected for redemption (except, in the case of a Security to be redeemed in part, the portion of the Security not to be redeemed) or any Securities in respect of which a Purchase Notice has been given and not withdrawn (except, in the case of a Security to be purchased in part, the portion of the Security not to be purchased) or any Securities for a period of 15 days before a selection of Securities to be redeemed. 12. Persons Deemed Owners --------------------- The registered Holder of this Security may be treated as the owner of this Security for all purposes. 13. Unclaimed Money or Securities ----------------------------- The Trustee and the Paying Agent shall return to the Company upon written request any money or securities held by them for the payment of any amount with respect to the Securities that remains unclaimed for two years, provided, however, that the Trustee or such Paying Agent, before being required to make any such return, may at the expense of the Company cause to be published once in a newspaper of general circulation in the City of New York or mail to each such Holder notice that such money or securities remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication or mailing, any unclaimed money or securities then remaining will be returned to the Company. After return to the Company, Holders entitled to the money or securities must look to the Company for payment as general creditors unless an applicable abandoned property law designates another person. - 65 - 14. Amendment; Waiver ----------------- Subject to certain exceptions set forth in the Indenture, (i) the Indenture or the Securities may be amended with the written consent of the Holders of at least a majority in aggregate Principal Amount of the Securities at the time outstanding and (ii) certain defaults or noncompliance with certain provisions may be waived with the written consent of the Holders of a majority in aggregate Principal Amount of the Securities at the time outstanding. Subject to certain exceptions set forth in the Indenture, without the consent of any Securityholder, the Company and the Trustee may amend the Indenture or the Securities to cure any ambiguity, defect or inconsistency, or to comply with Article 5 or Section 11.14 of the Indenture, to provide for uncertificated Securities in addition to or in place of certificated Securities or to make any change that does not adversely affect the rights of any Securityholder, or to comply with any requirement of the SEC in connection with the qualification of the Indenture under the TIA. 15. Defaults and Remedies --------------------- Under the Indenture, Events of Default include (i) default in payment of the Principal Amount, Issue Price, accrued Original Issue Discount, Redemption Price or Purchase Price (continuing for three Business Days), as the case may be, in respect of the Securities when the same becomes due and payable; (ii) failure by the Company to comply with other agreements in the Indenture or the Securities, subject to notice and lapse of time; and (iii) certain events of bankruptcy or insolvency. If an Event of Default occurs and is continuing, the Trustee, or the Holders of at least 25% in aggregate Principal Amount of the Securities at the time outstanding, may declare all the Securities to be due and payable immediately. Certain events of bankruptcy or insolvency are Events of Default which will result in the Securities being declared due and payable immediately upon the occurrence of such Events of Default. Securityholders may not enforce the Indenture or the Securities except as provided in the Indenture. The Trustee may refuse to enforce the Indenture or the Securities unless it receives reasonable indemnity or security. Subject to certain limitations, Holders of a majority in aggregate Principal Amount of the Securities at the time outstanding may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Securityholders notice of any continuing Default (except a Default in payment of amounts specified in clause (i) above) if it determines that withholding notice is in their interests. 16. Trustee Dealings with the Company --------------------------------- Subject to certain limitations imposed by the TIA, the Trustee under the Indenture, in its individual or any other capacity, may became the owner or pledgee of Securities and may otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee. - 66 - 17. No Recourse Against Others -------------------------- A director, officer, employee or stockholder, as such, of the Company shall not have any liability for any obligations of the Company under the Securities or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Security, each Securityholder waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities. 18. Authentication -------------- This Security shall not be valid until an authorized officer of the Trustee manually signs the Trustee's Certificate of Authentication on the other side of this Security. 19. Abbreviations ------------- Customary abbreviations may be used in the name of a Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with right of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act). 20. GOVERNING LAW ------------- THE LAWS OF THE STATE OF NEW YORK AND THE APPLICABLE FEDERAL LAWS OF THE UNITED STATES SHALL GOVERN THE INDENTURE AND THIS SECURITY WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS. -------------------- The Company will furnish to any Securityholder upon written request and without charge a copy of the Indenture which has in it the text of this Security in larger type. Requests may be made to: Bergen Brunswig Corporation 4000 Metropolitan Drive Orange, California 92668 Attention: Chief Financial Officer - 67 -
ASSIGNMENT FORM CONVERSION NOTICE To assign this Security, fill in the form below: To convert this Security into Class A Common Stock of the Company, check the I or we assign and transfer this Security to box: ---- _______________________________________________ | | | | _______________________________________________ ---- (Insert assignee's soc. To convert only part of this Security, state the sec. or tax ID no.) Principal Amount to be converted (which must be $1,000 or an integral multiple of $1,000): _______________________________________________ _______________________________________________ _______________________ _______________________________________________ _______________________________________________ _______________________ (Print or type assignee's name, address and zip code) (Insert other person's Soc. Sec. or Tax ID No.) and irrevocably appoint _________________ agent to transfer this Security on the books on ______________________________________________ the Company. The agent may substitute ______________________________________________ another to act for him. ______________________________________________ ______________________________________________ (Print or type assignee's name, address and zip code)
______________________________________________________________________________ Date:__________________Your Signature:______________________________________* ______________________________________________________________________________ (Sign exactly as your name appears on the other side of this Security) * Your signature must be guaranteed by an eligible guarantor institution (banks, stock brokers, savings and loan associations and credit unions with - 68 - membership in an approved signature guarantee medallion program) pursuant to Securities and Exchange Commission Rule 17Ad-15. - 69 - EX-10.1 5 BERGEN BRUNSWIG CORPORATION AMENDED AND RESTATED SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN EXHIBIT 10.1 FORM OF BERGEN BRUNSWIG AMENDED AND RESTATED SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN (AS OF MARCH 3, 1995) TABLE OF CONTENTS ----------------- Page ---- ARTICLE I PLAN HISTORY.................................................... 1 ARTICLE II DEFINITIONS.................................................... 2 2.1 "Accrued Benefit".............................................. 2 2.2 "Beneficiary".................................................. 4 2.3 "Bergen 401(k) Plan"........................................... 6 2.4 "Bergen Brunswig Corporation".................................. 6 2.5 "Board of Directors"........................................... 6 2.6 "Break in Service"............................................. 6 2.7 "Capital Accumulation Plan".................................... 7 2.8 "Code"......................................................... 7 2.9 "Compensation"................................................. 7 2.10 "Credited Service"............................................. 8 2.11 "Employee"..................................................... 8 2.12 "Employer"..................................................... 9 2.13 "Employment"................................................... 10 2.14 "Equivalent"................................................... 10 2.15 "ERISA"........................................................ 10 2.16 "Executive Benefits"........................................... 11 2.17 "Key Management Benefits"...................................... 11 2.18 "Normal Benefit Form".......................................... 11 2.19 "Normal Retirement Age"........................................ 12 2.20 "Optional Benefit Form"........................................ 12 2.21 "Participant".................................................. 12 2.22 "Plan"......................................................... 12 2.23 "Plan Administrator"........................................... 13 2.24 "Plan Rules"................................................... 13 2.25 "Plan Year".................................................... 13 2.26 "Service"...................................................... 13 2.27 "Spouse"....................................................... 15 2.28 "Trust"........................................................ 15 2.29 "Vested"....................................................... 15 2.30 "Vesting Service".............................................. 15 ARTICLE III PARTICIPATION................................................. 15 3.1 Requirements for Participation................................. 15 3.2 Former Participants............................................ 18 ARTICLE IV AMOUNT OF BENEFIT.............................................. 18 4.1 Determination of Benefit Amount................................ 18 ARTICLE V VESTING......................................................... 22 5.1 Vesting of Accrued Benefit..................................... 22 5.2 Forfeiture of Benefits......................................... 29 ARTICLE VI PAYMENT OF BENEFITS............................................ 30 6.1 Benefits on Termination of Employment.......................... 30 6.2 Death Benefits................................................. 30 6.3 Joint and Survivor Annuities................................... 30 6.4 Optional Benefit Forms......................................... 33 6.5 Funeral Benefit................................................ 34 6.6 Delay in Distribution.......................................... 34 6.7 No Suspension of Benefits...................................... 35 6.8 Release Required............................................... 35 i ARTICLE VII ADMINISTRATION OF THE PLAN.................................... 36 7.1 Duties of the Plan Administrator............................... 36 7.2 Delegation of Administrative Responsibility.................... 37 7.3 Compensation, Expenses and Indemnity........................... 38 7.4 Claims Procedure............................................... 40 7.5 Effect of Plan Administrator Action............................ 44 ARTICLE VIII AMENDMENT AND TERMINATION OF THE PLAN........................ 46 8.1 Amendments..................................................... 46 8.2 Termination of Plan............................................ 47 ARTICLE IX FUNDING OF BENEFITS............................................ 48 9.1 Plan is Unfunded............................................... 48 9.2 Trust.......................................................... 48 9.3 Interrelationship of the Plan and the Trust.................... 48 ARTICLE X MISCELLANEOUS PROVISIONS........................................ 49 10.1 Payments....................................................... 49 10.2 Consolidation or Merger of Companies........................... 50 10.3 Adoption of Plan to Cover Other Companies, Facilities or Groups................................ 51 10.4 Termination of Employment...................................... 51 10.5 Determination of Hours of Service.............................. 55 10.6 Alienation..................................................... 56 10.7 Division of Benefits by Domestic Relations Orders.............. 56 10.8 Legal Costs; Increased Benefit................................. 61 10.9 Duty to Provide Data........................................... 62 10.10 Limitation on Rights of Employees.............................. 63 10.11 Restrictions................................................... 64 10.12 Service of Process............................................. 65 10.13 Spouse's Interest.............................................. 65 10.14 Distribution in the Event of Taxation.......................... 65 10.15 Governing Law.................................................. 65 10.16 Plurals........................................................ 65 10.17 Titles......................................................... 66 10.18 References..................................................... 66 10.19 Entire Agreement............................................... 66 10.20 Severability................................................... 66 10.21 Withholding.................................................... 66 ii ARTICLE I --------- PLAN HISTORY ------------ Bergen Brunswig Corporation, a New Jersey corporation (sometimes hereinafter referred to as the "Company") adopted the Bergen Brunswig Capital Accumulation Plan in 1980. The Capital Accumulation Plan was frozen effective October 7, 1987. To replace the Capital Accumulation Plan, Bergen Brunswig Corporation adopted this Supplemental Executive Retirement Plan, effective January 1, 1991. The Supplemental Executive Retirement Plan was amended and restated, effective July 28, 1994. The Company now desires to amend and restate the Supplemental Executive Retirement Plan in order to provide the Participants (as hereinafter defined) with certain additional benefits in the event of a Change in Control (as defined below). This Amendment and Restatement of the Supplemental Executive Retirement Plan is effective as of March 3, 1995 and incorporates all prior amendments (as amended and restated, the "Plan"). While the Plan is not intended to qualify under the Code as a qualified plan, the Plan is intended to be a pension benefit plan which, although subject to ERISA, is exempt from Parts 2, 3 and 4 of Title I of ERISA because it is (solely for purposes of ERISA) an unfunded plan that only covers a select group of management or highly compensated employees. Persons become participants as provided herein. Benefits under the Plan become payable on account of a Participant's retirement or death. ARTICLE II ---------- DEFINITIONS ----------- The following terms, when capitalized, shall have the meaning specified below unless the context clearly indicates to the contrary. 2.1 "Accrued Benefit" of a Participant shall be the individual's --------------- benefit under this Plan, accrued as of the time of determination. A Participant's Accrued Benefit shall only be payable to the extent Vested. Subject to this limitation, a Participant's Accrued Benefit shall be the amount by which the product of the amounts described in subsections (a) and (b) exceeds the offsets set forth in Section 4.1(a), all as calculated as of the time of determination: (a) the individual's benefit under Section 4.1 before application of the offsets set forth in Section 4.1(a), and (b) a fraction, the numerator of which is the individual's Credited Service and the denominator of which is the greater of 2 (i) the total Credited Service the individual could earn before his or her Normal Retirement Age, or (ii) the result determined by subtracting from fifteen the individual's years of Service completed prior to performing any services for the Employer in a Credited Service position. In no event shall a Participant's fraction under this subsection exceed one. See Section 4.1(c) for special benefit calculation rules that apply when a Participant is demoted. (c) For all benefit purposes, if a Participant accumulates eighty "points" before his or her fraction in subsection (b) equals one, his or her fraction in subsection (b) shall be raised to one. A Participant shall accumulate 1 "point" for each year of age, 1 "point" for each year of Employment prior to becoming employed in a position covered by this Plan and 1.5 "points" for each year of Employment subsequent to becoming employed in a position covered by this Plan. (d) For purposes of this Section, a person shall be considered to have been employed in a position covered by this Plan if the position is a 3 position for which he or she receives Credited Service credit. 2.2 "Beneficiary" shall mean the person designated by a Participant ----------- to receive payments from the Plan due to the Participant's death. Beneficiary designations and determinations shall be made in accordance with the following rules: (a) Each Participant shall have the right, at any time, to designate his or her Beneficiary (both primary as well as contingent) to receive any benefits payable under the Plan to a Beneficiary upon the death of a Participant. The Beneficiary designated under this Plan may be the same as or different from the Beneficiary designation under any other plan of an Employer in which the Participant participates. A Participant shall designate his or her Beneficiary by completing and signing a Beneficiary Designation Form, in form and substance satisfactory to the Plan Administrator, and returning it to the Plan Administrator for acceptance. No designation or change in designation of a Beneficiary shall be effective until received, accepted and acknowledged in writing by the Plan Administrator. (b) A Participant shall have the right to change a Beneficiary by completing, signing and otherwise complying with the terms of the 4 Beneficiary Designation Form and the Plan Rules as in effect from time to time. Upon the acceptance by the Plan Administrator of a new Beneficiary Designation Form, all Beneficiary designations previously filed shall be cancelled. The Plan Administrator shall be entitled to rely on the last Beneficiary Designation Form filed by the Participant and accepted by the Plan Administrator prior to his or her death. (c) A Participant can designate someone other than his or her Spouse as Beneficiary, but only with written spousal consent. (d) If a deceased Participant has not properly designated a Beneficiary, the Participant's Spouse shall be treated as the Beneficiary. (e) If a deceased Participant is survived neither by a Spouse nor a properly designated Beneficiary, the Participant's estate shall be treated as the Beneficiary. (f) With the Plan Administrator's consent and subject to any conditions which the Plan Administrator may specify, the Participant may designate more than one person to be his or her Beneficiary, provided that 5 one Beneficiary is designated as the "measuring life" on which the duration and amount of the joint and survivor annuity is to be calculated and the portion of the survivor annuity to be paid to each Beneficiary is specified (e.g., my mother, Jane Doe, and my invalid daughter, Janet Doe, shall share equally in survivor benefits while they both live; any survivor benefits payable following the death of either my mother, Jane Doe, or my invalid daughter, Janet Doe, shall be paid to the survivor; survivor benefits are to be determined as if only my invalid daughter, Janet Doe, were the Beneficiary). 2.3 "Bergen 401(k) Plan" shall mean the Bergen Brunswig Corporation ------------------ Pre-Tax Investment Retirement Account Plus Employer Contributions Plan, or any successor to that plan. 2.4 "Bergen Brunswig Corporation" shall mean Bergen Brunswig --------------------------- Corporation, a New Jersey corporation. 2.5 "Board of Directors" shall mean the Board of Directors of Bergen ------------------ Brunswig Corporation. 2.6 "Break in Service" shall mean a period of non-Employment which ---------------- causes a former Employee to lose credits under this Plan. A former Employee incurs one Break in Service upon the completion of each three hundred and 6 sixty-five consecutive day period throughout which the individual is not an Employee. This period shall commence on the day following the last day on which the individual was an Employee. See Section 10.4 for special rules relating to maternity and paternity absences. 2.7 "Capital Accumulation Plan" shall mean the Bergen Brunswig ------------------------- Corporation Capital Accumulation Plan that was originally effective July 1, 1980, and frozen effective October 7, 1987. 2.8 "Code" shall mean the Internal Revenue Code of 1986, as amended ---- from time to time. 2.9 "Compensation" shall mean the average monthly earnings payable to ------------ a Participant for the three calendar years, whether or not consecutive, in which the Participant received the highest Compensation during the five calendar years immediately preceding the Participant's termination of Employment. This average shall be computed by dividing the Participant's total "earnings" (as defined in this Section) during the three years in question by thirty-six. A Participant's "earnings" shall mean the base salary paid to the Participant during the calendar year in question, including any salary waived or deferred under any 7 nonqualified deferred compensation or other salary reduction arrangement, but not including bonuses, non-cash payments or cash payments other than base salary. 2.10 "Credited Service" shall mean the number of years of Service in ---------------- which the Participant was employed in the position he or she held at the time he or she was designated by the Plan Administrator to be a Participant or was covered by the Capital Accumulation Plan, or any position held thereafter, including years before or after the adoption of either plan, but excluding any Service while the Participant was not employed in such a position or positions. Notwithstanding the above, should a Participant change positions, the Plan Administrator can, in its sole discretion, determine that the new position should not be considered a position for which such Participant shall receive any Credited Service credit. 2.11 "Employee" shall mean an individual who renders services to the -------- Employer as a common law employee or officer (i.e., a person whose wages from the Employer are subject to federal income tax withholding). A person rendering services to the Employer purportedly as an independent contractor shall not be treated as an Employee before the Employer has acknowledged that it must withhold federal income taxes from his or her pay. For purposes of this Plan, an individual shall remain an "Employee" if he or she ceases to work for the Employer for the purposes of taking an Employer-arranged job. 8 2.12 "Employer" shall mean: -------- (a) Adopting Employers. Bergen Brunswig Corporation, any related company designated by Bergen Brunswig Corporation, any successor entity which continues the Plan or such companies collectively; and (b) Non-Adopting Employers. Companies that have not adopted the Plan but are related to the adopting Employers as described in subsection (e). (c) All Employees of adopting and non-adopting Employers shall be treated as employed by a single company for all Plan purposes, including Service crediting, except that no person shall be eligible to become a Participant or accrue Credited Service except while employed by an adopting Employer. (d) In contexts in which actions are required or permitted to be taken or notice is to be given, the Employer shall mean Bergen Brunswig Corporation. (e) A company is a "related company" while it and the Employer are members of a controlled group of corporations or a group of trades or 9 businesses under common control (within the meaning of Code Sections 414(b) and (c)). 2.13 "Employment" shall mean the period during which an individual is ---------- an Employee. Employment shall commence on the day the individual first performs services for the Employer as an Employee and shall terminate on the day such services cease. 2.14 "Equivalent" shall mean the actuarial equivalent of a given ---------- amount or benefit payable in another manner, at another time or by any other means, determined conclusively by, or under the direction of, the Plan Administrator in accordance with actuarial principles, methods and assumptions which are found to be appropriate by the Plan's actuary. For purposes of this Plan, equivalencies shall be based on the mortality assumptions included in the indices used by Metropolitan Life Insurance Company, or such other nationally recognized insurance company, in quoting a premium to purchase a non-qualified individual annuity with survivor coverage as of the date of the event necessitating the calculation (e.g. retirement, termination of Employment, disability, etc.). 2.15 "ERISA" shall mean the Employee Retirement Income Security Act of ----- 1974, as amended from time to time. 10 2.16 "Executive Benefits" shall mean the benefits provided under this ------------------ Plan for officers of Bergen Brunswig Corporation who are Participants. 2.17 "Key Management Benefits" shall mean the benefits provided under ----------------------- this Plan for officers of a subsidiary of Bergen Brunswig Corporation and directors of a corporate department of Bergen Brunswig Corporation who are Participants. 2.18 "Normal Benefit Form" shall mean the normal form of benefit under ------------------- the Plan, which shall be the Equivalent of a Participant's Vested Accrued Benefit, payable as a joint and survivor annuity based on the life expectancies of the Participant and the measuring life Beneficiary at the time payment of the benefit commences, consisting of monthly payments to the Participant commencing as of the first day of the calendar month coincident with or next following the Participant's benefit commencement date and ending with the payment for the calendar month in which the Participant dies, with the provision that, if the Participant dies and is survived by the Beneficiary, such Beneficiary shall receive monthly payments of, in the case of Executive Benefits, seventy-five percent or, in the case of Key Management Benefits, fifty percent, of the monthly payments that were being made prior to the Participant's death, commencing with the payment for the calendar month following the month in which 11 the Participant died and ending with the payment for the calendar month in which the Beneficiary dies. 2.19 "Normal Retirement Age" of a Participant shall mean the date on --------------------- which the Participant attains age sixty-two. 2.20 "Optional Benefit Form" shall mean any form of benefit available --------------------- under the Plan, other than the Normal Benefit Form. 2.21 "Participant" shall mean any person who is included in the Plan ----------- pursuant to Article III. Any Participant who holds the title of Executive Vice President, Senior Vice President, President, Chief Operating Officer, Chief Executive Officer or Chairman of the Board upon the occurrence of a Change in Control (as defined in Section 5.1(b)(ii)) shall be designated an "Executive Participant" and shall be eligible for the acceleration of benefits set forth in Section 5.1(b). A Participant shall cease to be a Participant at the time determined under Section 3.1(c). 2.22 "Plan" shall mean this document. The Plan consists of two ---- components: Executive Benefits and Key Management Benefits, as more fully described in this document. 12 2.23 "Plan Administrator" shall mean Bergen Brunswig Corporation, ------------------ acting through its chief executive officer or such officer's delegate. 2.24 "Plan Rules" shall mean rules adopted by the Plan Administrator ---------- in accordance with Section 7.1(e) for the administration, interpretation or application of the Plan. 2.25 "Plan Year" shall mean the fiscal year of the Plan, which is --------- currently the twelve month period ending on December 31. 2.26 "Service" shall mean an Employee's period of Employment. Special ------- rules for calculating Service are found in Section 2.10, which explains what Service is counted for benefit accrual purposes, and Section 10.4, which deals with maternity and paternity absences. Service shall be calculated under the following elapsed time rules: (a) Service shall be measured in days. Service shall commence with the first day on which an individual performs or resumes performing services for the Employer as an Employee (e.g., the day the individual first performs an "hour of service" for which he or she is entitled to payment by the Employer). Except as provided in subsection (b), an Employee's Service 13 shall thereafter end on the day on which his or her Employment ends, as determined under Section 10.4. An Employee shall be credited with one year of Service for each three hundred and sixty-five days in his or her period or periods of Service. (Fractional results shall be rounded up to the nearest whole year.) (b) No more than three hundred and sixty-five days of Service will be credited for any continuous period during which an individual is an Employee but performs no duties as an Employee (except as required by law with respect to military leaves and maternity and paternity absences (see Section 10.4)). If an individual's Employment terminates but it resumes within three hundred and sixty-five days (i.e., before he or she incurs a Break in Service), the period between the termination and resumption will be included in his or her period of Service. (c) If an individual has more than one period of Service, the periods shall be aggregated. However, a Participant's prior period of Service shall be ignored if thereafter the Participant completed five consecutive Breaks in Service before he or she has earned a Vested Accrued Benefit. 14 2.27 "Spouse" shall mean the person to whom a Participant is legally ------ married at the time in question under the laws of the state in which the Participant then resides (excluding a common-law spouse). A person shall cease to be a Spouse when his or her marriage to the Participant is deemed dissolved or annulled under the laws of the state in which the Participant then resides. 2.28 "Trust" shall mean the trust established pursuant to that certain ----- Master Trust Agreement, dated as of December 27, 1994, between Bergen Brunswig Corporation and the trustee named therein, as amended from time to time. 2.29 "Vested" shall mean non-forfeitable. ------ 2.30 "Vesting Service" of an Employee shall mean his or her years of --------------- Service calculated in accordance with Section 2.26. ARTICLE III ----------- PARTICIPATION ------------- 3.1 Requirements for Participation. ------------------------------ (a) Executive Benefits. A person shall become a Participant in the Executive Benefits portion of the Plan on the date he or she becomes an 15 officer of Bergen Brunswig Corporation and is selected by the Plan Administrator to be a Participant. (b) Key Management Benefits. A person shall become a Participant in the Key Management Benefits portion of the Plan on the date he or she becomes an officer of a wholly-owned subsidiary of Bergen Brunswig Corporation or becomes a director of a corporate department of Bergen Brunswig Corporation and is selected by the Plan Administrator to be a Participant. (c) Change in Status. Whenever a Participant changes positions, the Plan Administrator shall determine, in his or her sole discretion, whether such Participant is in a position that is covered by the Executive Benefits portion of the Plan, a position covered by the Key Management portion of the Plan or a position that is not covered by the Plan. Except as provided in the next sentence, if the Plan Administrator makes no such determination within thirty (30) days of the change in position, the Participant shall remain in the portion of the Plan in which he or she was covered prior to the position change. If there is no determination by the Plan Administrator and the change in position entails becoming an officer of Bergen Brunswig Corporation, the Participant shall become a Participant of 16 the Executive Benefits portion of the Plan; if there is no determination by the Plan Administrator and the position change entails becoming an officer of a wholly-owned subsidiary of Bergen Brunswig Corporation or becoming a director of a corporate department of Bergen Brunswig Corporation, the Participant shall become a Participant of the Key Management Benefits portion of the Plan. (d) Termination. A Participant shall cease to be a Participant when his or her Employment terminates (see Section 2.13), unless the Participant becomes totally and permanently disabled while a Participant, in which case he or she shall remain a Participant until he or she attains age sixty-two. (A Participant shall be considered totally and permanently disabled while the Participant is receiving long-term disability benefits under the Bergen Brunswig Long Term Disability Plan (or would receive such benefits if the individual were covered by that plan). A totally and permanently disabled Participant shall continue to earn Vesting Service during such disability. However, the individual shall not be granted Credited Service for any period of disability. At the option of the Plan Administrator, the Plan Administrator can terminate the Plan with respect to the Participant and pay him or her the Equivalent of his or her Vested Accrued Benefit in an immediate cash lump sum payment or a monthly annuity 17 for a term of years to be determined by the Plan Administrator, in his or her sole discretion, provided that such term of years shall not exceed the life expectancy of the Participant. If the Plan Administrator exercises his or her option, the Participant shall be deemed to be fully Vested, whether or not he or she meets the requirements set forth in Article V. 3.2 Former Participants. A former Participant who requalifies for ------------------- the Plan shall again become a Participant on the date he or she requalifies. ARTICLE IV ---------- AMOUNT OF BENEFIT ----------------- 4.1 Determination of Benefit Amount. The Accrued Benefit payable to a ------------------------------- Participant under the Plan shall be calculated as follows (but it shall only be paid to the extent Vested under Section 5.1): (a) Eecutive Benefits. The benefit shall be a single life annuity (1983 Group Annuity Table) based on the Participant's life expectancy at the Normal Retirement Age and payable monthly commencing the month after the Participant reaches the Participant's Normal Retirement Age, equal to eighty percent of Compensation, subject to reduction under the 18 fractional accrual rule in Section 2.1 and subject to the offsets described below. A Participant's benefit shall be subject to the following offsets (each to be expressed as an Equivalent amount commencing at the Participant's Normal Retirement Age in an Optional Benefit Form): (i) the Participant's primary insurance amount payable under the Social Security Act at his or her Social Security retirement age; (ii) the Participant's benefit under the Capital Accumulation Plan; (iii) the monthly annuity the Participant could have purchased under the Bergen 401(k) Plan, if the Participant had made annual contributions to the Bergen 401(k) Plan of six percent of his or her taxable compensation (but not more than the maximum contribution, if any, allowable under Code Section 402(g)) and had received an annual matching Employer contribution of fifty percent of that amount or, if different, the amount determined under the table set forth below, from later of (i) the adoption of the Bergen 401(k) Plan or (ii) the date of the Participant's Employment through to the Normal Retirement Age. The 19 sum of such hypothetical contributions for any calendar year shall not exceed the amount then applicable under Code Section 415(c)(1)(A). Such hypothetical contributions shall be deemed to have been made to the Bergen 401(k) Plan on the last day of each calendar year and shall be credited with earnings at a rate equal to the average yield of the Bergen 401(k) Plan's guaranteed income fund, or successor fund as determined by the Plan Administrator, as of the beginning of the plan year of the Bergen 401(k) Plan. For calendar years commencing before 1990, the matching Employer contribution rate used shall be as follows:
Employer Matching Calendar Contriubtion Year Rate -------- ------------ 1985 1.5% 1986 1.7% 1987 1.2% 1988 3.0% 1989 6.0%
The offset required by this paragraph shall apply without regard to whether the Participant was eligible for the Bergen 401(k) Plan or actually made any contributions. In calculating the offset, hypothetical contributions shall not be deemed to have been made in calendar years prior to 1985 or in calendar years beginning before the 20 Participant's fortieth birthday, whichever is later; and (iv) any amounts owed by the Participant to the Employer (other than amounts owed by the Participant to the Employer under programs which expressly provide that the amount owed shall not be subject to this offset). This offset shall be applied only after first applying the offsets described in paragraphs (i)-(iii), and only if payment of the benefit commences before a change in control, as defined in Section 5.1(b)(ii). (b) Key Management Benefits. A Participant in the Key Management Benefits portion of the Plan shall receive the benefit described in subsection (a), except that the monthly benefit shall be sixty-five percent (not eighty percent) of his or her Compensation. (c) If a Participant who is covered by the Key Management Benefits portion of the Plan becomes covered by the Executive Benefits portion of the Plan, the Participant's benefit shall be calculated entirely under the Executive Benefits portion of the Plan. If a Participant who is eligible for the Executive Benefits portion of the Plan thereafter becomes eligible only for the Key Management Benefits portion of the Plan, his or 21 her benefits under the Plan shall be the greater of (1) the benefit, if any, he or she would have had if his or her Employment terminated when the Participant ceased to be covered by the Executive Benefits portion of the Plan, or (2) his or her benefit calculated under the Key Management Benefits portion of the Plan. If a Participant who is eligible for the Executive Benefits portion of the Plan or the Key Management Benefits portion of the Plan ceases to be employed in a position covered by this Plan, his or her benefits shall be determined as if his or her Employment terminated when the Participant ceased to be employed in a position covered by this Plan. ARTICLE V --------- VESTING ------- 5.1 Vesting of Accrued Benefit. -------------------------- (a) General Vesting Provisions. Payments Upon Change in Control. Except as otherwise provided in Section 5.1(b) below, a Participant's Accrued Benefit shall become fully Vested upon completion of five years of Vesting Service or, if earlier, upon the later of the Participant's attainment of age sixty-two while an Employee or his or her fifth anniversary of becoming a Participant. 22 (b) Vesting and Payment of Benefits Upon a Change in Control. (i) Notwithstanding any other provisions of the Plan, upon the occurrence of a Change in Control (as defined below), each Participant's Accrued Benefit shall deemed to be fully Vested under the Plan and each Executive Participant shall be entitled to benefits under the Plan in accordance with the following: (A) As of the date of the Change in Control, such Executive Participant shall be deemed to have attained the Normal Retirement Age; (B) with respect to each year between such Executive Participant's actual age as of the date of the Change in Control (if less than the Normal Retirement Age) and the Normal Retirement Age (the "Interim Period"), such Executive Participant shall be deemed to have been continuously employed by the Company in, and to have continuously performed (without any Breaks in Service) the duties of, the position with the Company that such Executive Participant held as of the date of the Change in Control; (C) such Executive Participant shall be deemed to be entitled to Credited Service for all times during the Interim Period; (D) such Executive Participant's base salary as of the date of the Change in Control shall be deemed to have increased at a rate of 4.0% per year each year during 23 the Interim Period, resulting in a corresponding increase in the Executive Participant's Compensation for purposes of the Plan; (E) such Executive Participant's Accrued Benefit under the Plan shall be calculated in accordance with the assumptions set forth in the preceding clauses (A) - (D), but without deduction of the offset described in Section 4.1.(a)(iv) of the Plan; and (F) prior to or upon the consummation of the transactions giving rise to the Change in Control, the Company shall pay to such Executive Participant, by certified or bank cashier's check, a cash lump sum payment that is the Equivalent of such Executive Participant's Vested Accrued Benefit determined in accordance with this Section 5.1.(b). (ii) A "Change in Control" shall be deemed to occur 90 days prior to the occurrence of any of the following events: (w) any "person" (as defined in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")), shall become the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of Bergen Brunswig Corporation representing 50% or more 24 of the combined voting power of Bergen Brunswig Corporation's then outstanding securities, provided, however, that for purposes of this calculation, purchases by employee benefit plans of Bergen Brunswig Corporation and purchases by Bergen Brunswig Corporation itself shall be disregarded; or (x) there shall be consummated: (A) any consolidation, merger or transaction in the nature of a Section 351 transaction under the Internal Revenue Code of 1986, as amended from time to time (the "Code") (whether or not it meets the requirements for nonrecognition of gain under Section 351 of the Code) of Bergen Brunswig Corporation in which either Bergen Brunswig Corporation is not the continuing or surviving corporation, the majority of the common stock of Bergen Brunswig Corporation is no longer held by holders of Bergen Brunswig Corporation common stock immediately prior to the transaction or pursuant to which shares of Bergen Brunswig Corporation's common stock would be converted into cash, securities or other property; provided, however, that a consolidation, merger or transaction in the nature of a Section 25 351 transaction under the Code in which the holders of Bergen Brunswig Corporation's common stock immediately prior to the merger own, on a proportionate basis, at least 80% of the common stock of the surviving corporation immediately after the transaction shall not be considered a Change in Control; or (B) any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all, or substantially all, of the operating assets of Bergen Brunswig Corporation; or (y) the stockholders of Bergen Brunswig Corporation approve a plan or proposal for the liquidation or dissolution of Bergen Brunswig Corporation; or (z) during any rolling period of two consecutive years ending on any date after the date hereof, individuals who at the beginning of such period constituted the Board of Directors and any new director whose election or nomination for election was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of 26 the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; provided, however, that no director shall be considered to have been so approved if such individual initially assumed office as a result of either an actual or threatened "Election Contest" (as described in Rule 14a-11 promulgated under the Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of a "person" (as defined in Sections 13(d) and 14(d) of the Exchange Act) other than the Board of Directors (a "Proxy Contest"), including by reason of any agreement intended to avoid or settle any Election Contest or Proxy Contest. (iii) In the event of a Change in Control, upon payment to each Executive Participant of the cash lump sum payment referred to in clause (F) of subsection 5.1(b)(i) above, the Company shall also pay to such Executive Participant, by certified or bank cashier's check, a cash lump sum payment equal to (x) the amount of excise tax for which such Executive Participant is or may become liable under Internal 27 Revenue Code Section 4999 (or any successor provision) with respect to the payments under this Section 5.1(b), taking into account all compensation includable in the computation under Internal Revenue Code Section 280G (or any successor provision), including, without limitation, payments under this subsection (iii) plus (b) the amount of such Executive Participant's income tax liability arising from the Company's payment of the excise tax liability referred to in the preceding clause (a), such that the payments under clauses (a) and (b) taken together shall provide such Participant with sufficient after-income tax dollars to pay such Participant's liability for Internal Revenue Code Section 4999 excise taxes. The maximum combined marginal federal and applicable state(s) income tax rate in effect for the year in which the payments under this subsection (iii) are to be made shall be used in computing the amount of such payments. In the event that the Company and the Executive Participant are unable to agree upon the amount of the payment required under this subsection (iii), such amount shall be determined by Tax Counsel (as defined below). The decision of such Tax Counsel shall be final and binding upon both the Company and the Executive Participant. All fees and expenses of such Tax Counsel shall be paid by the Company. As used in this subsection (iii), the term "Tax Counsel" shall mean an attorney at 28 law or certified public accountant who is a partner at a law firm of at least 25 attorneys or a partner at a "Big 6" accounting firm, respectively, provided that such firm has not provided services to the Company or the respective Executive Participant or any affiliate of the Company or such Executive Participant within the last year. (iv) Upon the occurrence of a Change in Control, (x) this subsection 5.1(b) shall become irrevocable, and (y) Sections 6.8, 7.4(h), 7.4(i), 7.5 and 10.11 hereof shall cease to apply, none of such sections shall ever thereafter be reinstated, and no similar provisions shall ever be adopted hereunder. 5.2 Forfeiture of Benefits. The unvested portion of an Executive ---------------------- Participant's Accrued Benefit shall be forfeited on the date the Executive Participant completes five consecutive Breaks in Service. 29 ARTICLE VI ---------- PAYMENT OF BENEFITS ------------------- 6.1 Benefits on Termination of Employment. A Participant who ------------------------------------- terminates Employment on or after attaining Normal Retirement Age shall receive his or her Vested Accrued Benefit commencing immediately and payable in accordance with this Article. If the Participant terminates Employment before his or her Normal Retirement Age, the Participant shall receive the Equivalent of his or her Vested Accrued Benefit commencing immediately upon termination of Employment and payable in accordance with this Article. 6.2 Death Benefits. Subject to Section 10.7, if a Participant with a -------------- Vested Accrued Benefit dies, at the option of the Plan Administrator, the Participant's Beneficiary shall be paid the lump sum Equivalent of the remaining balance of the Participant's Vested Accrued Benefit. 6.3 Joint and Survivor Annuities. ---------------------------- (a) Subject to Section 6.4, a Participant's Vested Accrued Benefit shall be paid in the Normal Benefit Form. Distribution shall also be made in the form of a joint and survivor annuity if a former Spouse is 30 entitled to survivor annuity benefits under a qualified domestic relations order, as provided in Section 10.7. More than one Spouse may be entitled to joint and survivor annuity benefits. For example, two former Spouses may have been awarded survivor benefits and there may also be a current Spouse. In such cases, this Section shall be applied by dividing the Participant's Vested Accrued Benefit in proportion to the spousal entitlements and then applying this Section to each portion as if each portion were a separate Vested Accrued Benefit belonging to the Participant and the Spouse or former Spouse in question. (b) After a Participant has received the explanation required by subsection (c), the Participant and his or her Spouse, if any, if such Spouse is a Beneficiary (or former Spouse if such Spouse has the power to do so under a qualified domestic relations order), may elect, with the consent of the Plan Administrator and in the manner prescribed by it, not to receive a joint and survivor annuity, in which case the Participant shall receive his or her Vested Accrued Benefit in an Optional Benefit Form. This election may be made at any time but must be made no later than one year preceding the time benefit payments would otherwise commence under Section 6.1. This election shall become irrevocable one year preceding the time benefit payments would otherwise commence under Section 6.1. Spousal 31 consents to elections waiving joint and survivor annuity benefits that are required must be given in writing witnessed by a representative of the Plan Administrator or a notary public. A spousal consent will only be valid if it also consents to both the alternative form of payment chosen and the Beneficiary, if any, thereunder and only if the form of payment and the Beneficiary cannot be changed without future spousal consent (unless the written spousal consent expressly permits such changes to be made and the Spouse acknowledges that he or she understands that he or she does not have to grant this permission). A Spouse's written consent must acknowledge the effect of the payment and the Beneficiary election to which he or she is consenting. The Plan Administrator in its discretion may refuse to recognize a spousal consent if it believes for any reason that the consent is invalid. Spousal consent shall be waived by the Plan Administrator if a Participant has no Spouse and may be waived if the Spouse cannot be located or for such other reasons authorized in applicable Treasury Regulations. Revocations of previous elections to waive the joint and survivor annuity may be made at any time and any number of times within the election period and new waiver elections may thereafter be made. Revocations of elections to waive the joint and survivor annuity may be made without spousal consent. A spousal consent given by one Spouse shall be invalid as to any former or 32 subsequent Spouse (but no benefit shall be payable under this Section to a person who becomes the Participant's Spouse after the Participant's benefit payments under the Plan have commenced). (c) Assuming sufficient notice of termination of Employment has been provided to the Plan Administrator, no less than thirty nor more than ninety days before termination of Employment, the Plan Administrator shall furnish each Participant with a written explanation of the terms and conditions of the Normal Benefit Form, the Participant's right to make an election to waive the Normal Benefit Form or to revoke a previous election and the effect of such election or revocation, the rights of the Participant's Spouse in connection with an election by the Participant, and the relative values of the Optional Benefit Forms then available under the Plan. 6.4 Optional Benefit Forms. Instead of receiving a benefit in the ---------------------- Normal Benefit Form, a Participant may elect to receive payments in an Optional Benefit Form. This election must be made in writing in accordance with the requirements of the Plan Administrator and must be delivered to the Plan Administrator prior to the Participant's termination of Employment. A married Participant may be required to obtain his or her Spouse's consent to this election pursuant to the rules set forth in Section 6.3(b). If an Optional 33 Benefit Form provides benefits to a Beneficiary, election of the Optional Benefit Form shall not be effective unless the Beneficiary is alive on the date of the Participant's Retirement. The Optional Benefit Forms available to a Participant are as follows: (a) A cash lump sum which is the Equivalent of the Participant's Vested Accrued Benefit. 6.5 Funeral Benefit. In addition to any other benefit payable under --------------- the Plan, the estate of a Participant who dies before termination of Employment shall be paid a cash lump sum in the amount of $5,000 to cover funeral expenses of the Participant. This additional benefit shall be paid only if the estate gives written notice of the Participant's death to the Plan Administrator and only if the Participant had a Vested Accrued Benefit, without regard to whether any or all of the Vested Accrued Benefit will be paid. This benefit shall be reduced by the funeral benefit, if any, which became payable with respect to the Participant under section 6.3 of the Capital Accumulation Plan. 6.6 Delay in Distribution. --------------------- (a) If the amount payable under this Article cannot be ascertained or the person to whom it is payable has not been determined or located and reasonable efforts to do so have been made, then distributions 34 under this Article shall commence, retroactive to the date they would normally have commenced, within a reasonable time after such amount is ascertained or such person is determined or located. (b) Distribution of benefits to a Participant shall not be triggered by the transfer of the Participant to any other job (whether or not with the Employer or an affiliate) if the transfer is arranged by the Employer. The Participant's benefit will commence when the Participant ceases to be employed by the Employer or by any other company for which the Participant worked in an Employer-arranged job. 6.7 No Suspension of Benefits. Benefits which are in pay status shall ------------------------- not be suspended if a Participant subsequently performs services for the Employer in any capacity. 6.8 Release Required. No benefits shall be payable to a Participant ---------------- unless the Participant executes a general release waiving any and all claims the Participant may have against the Employer and related parties. The release shall be made on the form prescribed by the Employer and cannot be given any earlier than one month before benefit payments are expected to commence. A release shall not be required with respect to benefits that become payable under 35 the Plan because of termination of Employment due to death. ARTICLE VII ----------- ADMINISTRATION OF THE PLAN -------------------------- 7.1 Duties of the Plan Administrator. The Plan Administrator shall be -------------------------------- responsible for the general administration and management of the Plan. The Plan Administrator shall have all powers and duties and the discretion necessary to fulfill its responsibilities, including, but not limited to, the following powers and duties: (a) To determine all questions relating to the eligibility of persons to participate; (b) To determine the amount and kind of benefits payable to Participants; (c) To maintain all records necessary for the administration of the Plan; (d) To provide for disclosure of all information and filing or provision of all reports and statements to Participants, Spouses, Beneficiaries or governmental bodies as shall be required by ERISA or any 36 other federal law; (e) To adopt or modify Plan Rules for the regulation or application of the Plan; such Rules may establish administrative procedures or requirements which modify the terms of this Plan but Plan Rules shall not substantially alter significant requirements or provisions of the Plan; (f) To administer the claims procedure set forth in Section 7.4; (g) To delegate any power or duty to any firm or person in accordance with Section 7.2; and (h) To exercise all other powers or duties granted to the Plan Administrator by other provisions of the Plan. 7.2 Delegation of Administrative Responsibility. ------------------------------------------- (a) The Plan Administrator may delegate all or any portion of its administrative responsibilities with respect to the Plan to any other person pursuant to this Section. 37 (b) A delegation under this Section shall be accomplished by a written instrument executed by the Plan Administrator specifying responsibilities delegated and the fiduciary responsibilities allocated to such delegate. The delegation of such responsibilities shall be effective upon the date specified in the delegation, subject to written acceptance by the delegate. Any delegation of responsibilities shall provide for reports, no less often than annually, by such delegate to the Plan Administrator of such information necessary to fully inform the Plan Administrator of the status and operation of the Plan and of the delegate's discharge of responsibilities delegated. 7.3 Compensation, Expenses and Indemnity. ------------------------------------ (a) The Plan Administrator and any delegate under Section 7.2 who is an Employee shall serve without compensation for services to the Plan. The Employer shall furnish the Plan Administrator or any such delegate with all clerical or other assistance necessary in the performance of his or her duties. The Plan Administrator is authorized to employ such legal counsel and advisors as it may deem advisable to assist in the performance of its duties hereunder. 38 (b) All costs of administering the Plan (including the cost of legal services described in subsection (a)) shall be paid by the Employer. Except as the Plan Administrator otherwise directs, any expenses incurred in resolving disputes among different claimants as to their entitlement to a benefit shall be charged against the benefit, which shall be reduced accordingly. (c) To the extent permitted by applicable law, the Employer shall indemnify and save harmless the Board of Directors, the Plan Administrator and any delegate appointed pursuant to Section 7.2 who is an Employee against any and all expenses, liabilities and claims (including legal fees incurred to defend against such liabilities and claims) arising out of their discharge in good faith of responsibilities under or incident to the Plan. Expenses and liabilities arising out of willful misconduct shall not be covered under this indemnity. This indemnity shall not preclude such further indemnities as may be available under insurance purchased by the Employer or provided by the Employer under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, as such indemnities are permitted under applicable law. Payments with respect to any indemnity and payment of expenses or fees shall be made only from assets of the Employer. 39 7.4 Claims Procedure. ---------------- (a) Normally, a Participant, Beneficiary Contingent Annuitant or Spouse need not present a formal claim in order to qualify for rights or benefits under this Plan. However, if any such person (a "claimant") does not believe he or she will receive the benefits to which the person is entitled or believes that the Plan is not being operated properly, the claimant must file a formal claim under the procedures set forth in this Section. A formal claim must be filed within six months of the date upon which the claimant (or his or her predecessor in interest) first knew (or should have known) of the facts upon which the claim is based. (b) A claim by any person shall be presented to the Plan Administrator in writing. A claims official appointed by the Plan Administrator shall, within ninety days of receiving the claim, consider the claim and issue his or her determination thereon in writing. The claims official may extend the determination period for up to an additional ninety days by giving the claimant written notice. If the claim is granted, the benefits or relief the claimant seeks will be provided. 40 (c) If the claim is wholly or partially denied, the claims official shall, within ninety days (or such longer period as described above), provide the claimant with written notice of the denial, setting forth, in a manner calculated to be understood by the claimant, (i) the specific reason or reasons for the denial, (ii) specific references to pertinent Plan provisions on which the denial is based, (iii) a description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why the material or information is necessary, and (iv) an explanation of the Plan's claim review procedure. If the claims official fails to respond to the claim in a timely manner, the claimant may treat the claim as having been denied by the claims official. (d) Each claimant shall have the opportunity to appeal in writing the claims official's denial of a claim to a review official (which may be a 41 person or a committee) designated by the Plan Administrator for a full and fair review. A claimant must request review of a denied claim within sixty days after receipt by the claimant of written notice of denial of his or her claim or within sixty days after such written notice was due, if the written notice was not sent. In connection with the review proceeding, the claimant or his or her duly authorized representative may review pertinent documents and may submit issues and comments in writing. The claimant may only present evidence and theories during the review which the claimant presented during the claims procedure, except for information which the claims official requested the claimant to provide to perfect the claim (see subsection (b)(iii)). Any claims which the claimant does not in good faith pursue through the review stage of the procedure shall be treated as having been irrevocably waived. (e) The Plan Administrator shall adopt procedures pursuant to which claims shall be reviewed and may, in its discretion, adopt different procedures for different claims without being bound by past actions. Any procedures adopted, however, shall be designed to afford a claimant a full and fair review of his or her claim. 42 (f) The decision by the review official upon review of a claim shall be made not later than sixty days after the written request for review is received by the Plan Administrator, unless special circumstances require an extension of time for processing, in which case a decision shall be rendered as soon as possible, but not later than one hundred twenty days after receipt of the request for review. (g) The decision on review shall be in writing and shall include specific reasons for the decision written in a manner calculated to be understood by the claimant, with specific references to the pertinent Plan provisions on which the decision is based. (h) If a claimant pursued his or her claim through the review stage of the claims procedure and the claim was denied (or the review official failed to decide the claim on a timely basis, in which case it shall be deemed denied), the claimant will be permitted to appeal the denial by arbitration pursuant to Section 7.5 of the Plan. In no event shall any claim to which this procedure applies be subject to resolution by any means (such as in a court of law) other than by this claim procedure or arbitration under Section 7.5 43 (i) This Section shall apply to a claim notwithstanding any failure by the Plan Administrator or its delegates to follow the procedures in this Section with respect to the claim. However, an arbitrator reviewing such a claim may permit a claimant to present additional evidence or theories if the arbitrator determines that the claimant was precluded from presenting them during the claim and review procedures due to procedural errors of the Plan Administrator or its delegates. 7.5 Effect of Plan Administrator Action. The Plan shall be ----------------------------------- interpreted by the Plan Administrator and all Plan fiduciaries in accordance with the terms of the Plan and their intended meanings. However, the Plan Administrator and all Plan fiduciaries shall have the discretion to make any findings of fact needed in the administration of the Plan, and shall have the discretion to interpret or construe ambiguous, unclear or implied (but omitted) terms in any fashion they deem to be appropriate in their sole judgment. The validity of any such finding of fact, interpretation, construction or decision shall not be given de novo review if challenged in court, by arbitration or in any other forum, and shall be upheld unless clearly arbitrary or capricious. To the extent the Plan Administrator or any Plan fiduciary has been granted discretionary authority under the Plan, the Plan Administrator's or Plan fiduciary's prior exercise of such authority shall not obligate it to exercise its authority in a like fashion thereafter. If, due to errors in drafting, any 44 Plan provision does not accurately reflect its intended meaning, as demonstrated by consistent interpretations or other evidence of intent, or as determined by the Plan Administrator in its sole and exclusive judgment, the provision shall be considered ambiguous and shall be interpreted by the Plan Administrator and all Plan fiduciaries in a fashion consistent with its intent, as determined by the Plan Administrator in its sole discretion. The Plan Administrator, without the need for Board of Directors' approval, shall amend the Plan retroactively to cure any such ambiguity. This Section may not be invoked by any person to require the Plan to be interpreted in a manner which is inconsistent with its interpretation by the Plan Administrator or by any Plan fiduciaries. All actions taken and all determinations made in good faith by the Plan Administrator or by Plan fiduciaries shall be final and binding upon all persons claiming any interest in or under the Plan. This Section shall cease to apply upon the occurrence or a change in control (see Section 5.1(b)(ii)) and it shall thereafter never be reinstated in any way. 45 ARTICLE VIII ------------ AMENDMENT AND TERMINATION OF THE PLAN ------------------------------------- 8.1 Amendments. ---------- (a) Bergen Brunswig Corporation, through its Board of Directors, reserves the right at any time to amend the Plan or to merge, consolidate, divide or otherwise restructure the Plan prospectively or retroactively, in accordance with this Article VIII, subject to the restrictions set forth in Sections 4.1(a)(iv), 5.1(b) and 7.5, which take effect upon the occurrence of a change in control (as defined in Section 5.1(b)(ii)). (b) All amendments or other changes shall be adopted in writing by resolution of the Board of Directors or, in the case of an amendment that does not substantially alter the nature or expense of the Plan, by the Plan Administrator without Board approval. (c) Any material modification of the Plan by amendment or termination shall be communicated to all interested parties in the time and manner required by law. 46 (d) No Plan amendment shall be applied retroactively to decrease the Vested percentage or Vested Accrued Benefit of a Participant or former Participant whose Employment terminated before the date the amendment became effective. (e) No Plan amendment shall be applied retroactively to decrease the amount of Service credited to any person for Employment before the date the amendment became effective. (f) Except as provided in subsections (d) and (e), all rights under the Plan shall be determined under the terms of the Plan as in effect at the time the determination is made. 8.2 Termination of Plan. The Plan is intended to be a permanent ------------------- program, but any Employer, through its Board of Directors, shall have the right at any time to declare the Plan terminated completely as to it or as to any of the Employer's divisions, facilities, operational units or job classifications. If the Plan is terminated, all unvested benefits shall be forfeited but all Vested benefits shall remain payable. The Employer may accelerate the payment of such benefits, however, and pay the person entitled to the benefit the equivalent of the remaining payments due. 47 ARTICLE IX ---------- FUNDING OF BENEFITS ------------------- 9.1 Plan is Unfunded. This Plan is, for purposes of ERISA and the ---------------- Code, an unfunded deferred compensation plan for a select group of management and highly compensated employees. Participants and their Beneficiaries, successors and assigns shall have no legal or equitable rights, interests or claims in any property or assets of an Employer. Any and all of an Employer's assets shall be, and remain, the general, unpledged unrestricted assets of the Employer. An Employer's obligation under the Plan shall be merely that of an unfunded and unsecured promise to pay money in the future. 9.2 Trust. Bergen Brunswig Corporation shall establish the Trust, and ----- the Adopting Employers shall at least annually transfer over to the Trust such assets as the Adopting Employers determine, in good faith, are necessary to provide for each Employer's future liabilities created under this Plan. Whether or not an Employer funds the Trust, it shall at all times remain liable to carry out its obligations under the Plan. 9.3 Interrelationship of the Plan and the Trust. The provisions of ------------------------------------------- the Plan shall govern the rights of a Participant to receive distributions 48 pursuant to the Plan. The provisions of the Trust shall govern the rights of the Employers, Participants and the creditors of the Employers to the assets transferred to the Trust. Each Employer shall at all times remain liable to carry out its obligations under the Plan. Each Employer's obligations under the Plan may be satisfied with Trust assets distributed pursuant to the terms of the Trust, and any such distribution shall reduce the Employer's obligations under this Plan. ARTICLE X --------- MISCELLANEOUS PROVISIONS ------------------------ 10.1 Payments. -------- (a) In the event any amount becomes payable under the Plan to a minor or a person who, in the sole judgment of the Plan Administrator, is considered to be unable to give a valid receipt for the payment by reason of physical or mental condition, the Plan Administrator may direct that payment be made to any person found by the Plan Administrator, in its sole judgment, to have assumed the care of the person in question. Any payment made pursuant to such a finding shall constitute payment by the Plan and result in a full release and discharge of the Plan Administrator, the Employer and their officers, directors, employees, agents and representatives. 49 (b) Payment of benefits to the person entitled thereto may be made by a check sent first class mail, address correction requested, to the last known address on file with the Plan Administrator. If within six months from the date of issuance of the check the payment letter cannot be delivered to the person entitled thereto or the check has not been negotiated, all benefits under the Plan may be forfeited at the discretion of the Plan Administrator. (c) If the Plan Administrator retains at the Plan's expense a private investigator or other person or service to assist in locating a missing person, all costs incurred for such services shall be charged to the benefit to which the missing person was entitled (which shall be reduced by the amount of the costs incurred), except as the Plan Administrator may otherwise direct. 10.2 Consolidation or Merger of Companies. In the event of the ------------------------------------ consolidation or merger of the Employer with or into any other business entity, or the sale by the Employer of all of its assets, the successor may continue the Plan by adopting the same by resolution of its board of directors or agreement of its partners or proprietor. This Plan shall not be construed as preventing the Employer from selling, transferring or otherwise disposing of all or any part of the business or assets of the Employer, and the purchaser of all or any 50 part of the Employer shall not be obligated to continue this Plan. If, within ninety days from the effective date of a consolidation, merger or sale of assets, the new corporation, partnership or proprietorship does not adopt the Plan, the Plan shall be terminated in accordance with Section 8.2. 10.3 Adoption of Plan to Cover Other Companies, Facilities or Groups. --------------------------------------------------------------- Any company, with the approval of the Plan Administrator, may adopt the Plan (as a whole company or as to any one or more divisions or facilities or other employment classifications) effective as of the date it specifies. Adoption shall be accomplished either by action of the adopting company (without board approval) or by resolution of the adopting company's own board of directors or agreement of its partners. The same procedure shall be followed when an Employer that has adopted the Plan wishes to change the positions or facilities covered by this Plan. 10.4 Termination of Employment. ------------------------- (a) A person's Employment shall terminate upon the first to occur of his or her resignation from or discharge by the Employer, or his or her death or retirement. A person's Employment shall not terminate on account of an authorized leave of absence, sick leave or vacation, or on account of 51 a military leave described in subsection (b), a direct transfer between Employers or a temporary layoff for lack of work. However, (i) continuation upon a temporary layoff for lack of work for a period in excess of the number of months allowable under applicable personnel policies of the Employer shall be considered a discharge effective as of the end of the last day of such period, (ii) failure to return to work upon expiration of any leave of absence, sick leave or vacation or within the time period allowed under applicable personnel policies of the Employer after recall from a temporary layoff for lack of work shall be considered a resignation effective as of the expiration of such leave of absence, sick leave, vacation or layoff, and (iii) solely for purposes of this Plan, Employment shall not terminate until the expiration of all severance benefits payable by the Employer. (b) Any Employee who leaves the Employer directly to perform service in the Armed Forces of the United States or in the United States 52 Public Health Service under conditions entitling the Employee to reemployment rights, as provided in the laws of the United States, shall be on military leave. An Employee's military leave shall expire if such Employee voluntarily resigns from the Employer during the leave or if he or she fails to make application for reemployment within the period specified by such laws for the preservation of reemployment rights. In such event, the individual's Employment shall be deemed to terminate by resignation on the date the military leave expired. (c) If a Participant ceases to be employed by the Employer and all related companies, as determined under Section 2.12(e), because of the disposition by the Employer or a related company of its interest in a subsidiary (within the meaning of Code Section 409(d)(3)) or substantially all of the assets (within the meaning of Code Section 409(d)(2)) used by the Employer or a related company in a trade or business, the Participant's Employment shall be considered terminated for all Plan purposes. This subsection shall not apply to the extent it is overridden by any contrary or inconsistent provision in applicable sales documents or any related documents, whether adopted before or after the sale and any such contrary or 53 inconsistent provision shall instead apply and is hereby incorporated in the Plan by this reference. (d) If an Employee is absent from work because of such individual's pregnancy, the birth of a child, placement of an adopted child, or caring for an adopted or natural child following birth or placement, determinations of whether the Employee has incurred a Break in Service because of the absence shall be made in accordance with the following special rules: (i) If the maternity/paternity absence is an Employer-approved leave of absence, it shall be treated as any other approved leave of absence (i.e., a Break in Service will not occur until the individual's Employment terminates because he or she quits or is discharged or he or she is considered terminated pursuant to Section 10.4(a)). (ii) If the maternity/paternity absence is not an Employer-approved leave of absence the individual's Employment will be deemed terminated as of the date determined under applicable personnel policies of the Employer but the individual shall not incur a Break in Service until the end of the second three hundred and sixty-five consecutive day period of his or her absence from Employment. If the 54 individual returns to Employment during the first three hundred and sixty-five consecutive days of absence, the period of absence shall be treated as Service. If the individual returns to Employment during the second three hundred and sixty-five consecutive day period of absence, the portion of that second period which precedes the individual's return to Employment will not be a Break in Service but will not count as Service. (e) No credit shall be given under subsection (d) unless the Employee files a written request which establishes valid reasons for the absence, as determined by the Plan Administrator. (f) Except to the extent that a maternity or paternity absence constitutes an authorized leave of absence from the Employer under applicable personnel policies, an Employee who is absent from work for reasons of maternity or paternity shall be deemed to have terminated Employment for all purposes of this Plan other than the special rules in subsection (d). 10.5 Determination of Hours of Service. This Plan uses the elapsed --------------------------------- time system for crediting Service. Therefore, a Participant's hours of Service 55 need not be measured or defined by this Plan. 10.6 Alienation. Except as otherwise provided in this Plan, the ---------- rights of a Participant, Spouse or Beneficiary under the Plan shall not be subject to any claim of any creditor nor to attachment or garnishment or other legal process by any creditor. A Participant, Spouse or Beneficiary shall not have the right to alienate, anticipate, commute, pledge, encumber or assign any of the benefits or payments or proceeds which the individual may expect to receive, contingently or otherwise, under the Plan. The provisions of this Section shall not preclude any assignment or alienation expressly required under applicable pension law or other provisions of the Plan. 10.7 Division of Benefits by Domestic Relations Orders. ------------------------------------------------- (a) This Plan will follow the terms of any qualified domestic relations order issued with respect to a Participant. However, except as provided in subsection (e), the Plan will only follow orders which meet all of the requirements of subsection (b) or subsection (c). Subsection (c) establishes an optional standardized procedure. 56 (b) A "qualified domestic relations order" is any judgment, decree or order, including the approval of a property settlement agreement, issued by a court of competent jurisdiction, provided that (i) the order relates to the provision of child support, alimony or marital property rights and is made pursuant to state domestic relations or community property laws; (ii) the order creates or recognizes the existence of an alternate payee's right to receive all or a portion of a Participant's Accrued Benefit; (iii) the order specifies the name and last known mailing address of the Participant and each alternate payee covered by the order; (iv) the order precisely specifies the amount or percentage of the Participant's Accrued Benefit to be paid to each alternate payee or the manner in which the amount or percentage is to be determined; (v) the order specifies the number of payments or the period to which the order applies; 57 (vi) the order specifically names this Plan as the plan to which the order applies; (vii) the order does not require this Plan to provide any type of benefits or form of benefits not otherwise provided under this Plan; (viii) the order does not require the payment of benefits to an alternate payee which are required to be paid to another alternate payee under another order previously determined by the Plan Administrator to be a qualified domestic relations order; and (ix) (if the order requires that payments to the alternate payee commence before they commence with respect to the Participant) the order (1) specifies that payments will not commence before the earlier of (a) the date on which the Participant attains age fifty or the first date on which the Participant could begin receiving benefits under the Plan if the Participant's Employment terminated, whichever is later, or (b) the date benefits first become payable to the Participant 58 and (2) does not permit the alternate payee to elect a joint and survivor annuity covering the alternate payee and a spouse (other than the Participant). A qualified domestic relations order may provide that a former Spouse of the Participant is to be treated as a surviving Spouse for purposes of the pre-retirement or post-retirement joint and survivor annuity provisions of this Plan. Subsection (d) sets forth the procedures under which the Plan Administrator shall determine whether a domestic relations order properly qualifies. (c) The Plan Administrator at its discretion may furnish on request a standard form of qualified domestic relations order to a Participant or any other person. This order may provide for an immediate lump sum payment of the Equivalent of the amount to which the Plan Administrator shall treat it as a qualified domestic relations order and shall pay benefits to the alternate payee in accordance with its terms. If this procedure is not followed, the alternate payee (1) must wait until the time described in subsection (b)(ix) before benefits which are not in pay status can become payable to the alternate payee and (2) cannot use any special forms of benefit payment authorized in the standard form of order. Any special benefit form provisions in standard domestic relations orders adopted by the Plan Administrator shall be authorized as benefit options 59 under this Plan, but only as Plan Administrator shall treat it as a qualified domestic relations order and shall pay benefits to the alternate payee in accordance with its terms. If this procedure is not followed, the alternate payee (1) must wait until the time described in subsection (b)(ix) before benefits which are not in pay status can become payable to the alternate payee and (2) cannot use any special forms of benefit payment authorized in the standard form of order. Any special benefit form provisions in standard domestic relations orders adopted by the Plan Administrator shall be authorized as benefit options under this Plan, but only as to alternate payees for whom the standard order has been used. (d) The Plan Administrator need not treat any judgment, decree or order as a qualified domestic relations order unless it meets all of the requirements set forth in subsection (b) or (c) and is sufficiently precise and unambiguous so as to preclude any interpretative disputes. If the order meets these requirements, the Plan Administrator shall follow the terms of the order whether or not this Plan has been joined as a party to the litigation out of which the order arises. Upon receipt of a domestic relations order, the Plan Administrator shall notify the Participant and each alternate payee of (1) its receipt of the order and (2) its need to 60 determine the qualified status of the order in accordance with subsection (b) or (c). An alternate payee may designate a representative to receive copies of future notices with respect to the qualified status of the order. To the extent an order calls for benefits to be paid to an alternate payee before the qualified nature of the order is determined, a separate account shall be established to hold the benefit payments affected by the order. This account shall be administered in accordance with the rules set forth in Section 206(d)(3)(H) of ERISA. (e) The Plan Administrator in its discretion may treat a property settlement agreement or stipulation which is not contained in a judgment, decree or order as a qualified domestic relations order if it meets all of the other requirements of this Section. 10.8 Legal Costs; Increased Benefit. ------------------------------ (a) The Employer shall pay to a Participant all reasonable attorneys' fees and necessary costs and disbursements incurred by or on behalf of such Participant in connection with or as a result of a dispute under this Agreement, whether or not the Participant ultimately prevails. Attorneys' fees shall be paid by the Employer within 30 days of presentment 61 by the Participant to the Employer of an invoice received by the Participant from the Participant's attorneys. Any late payments under this Section shall bear interest at a rate of twenty percent (20%) per month. (b) If the Employer disputes any position taken by a Participant under this Agreement and the Participant prevails, the Participant's benefit under this Plan shall be doubled and the increased amount shall become immediately due and payable to the Participant. 10.9 Duty to Provide Data. -------------------- (a) Every person with an interest in the Plan or claiming benefits under the Plan shall furnish the Plan Administrator on a timely and accurate basis with such documents, evidence or information as it considers necessary or desirable for the purpose of administering the Plan. The Plan Administrator may postpone payment of benefits until such information and such documents have been furnished. (b) Once every twelve months every person claiming a benefit under this Plan shall file a signed, written notice to the Plan Administrator of his or her post office address and each change of post office address. Any communication, statement or notice addressed to such a 62 person at his or her latest post office address as filed with the Plan Administrator will, on deposit in the United States mail with postage prepaid, be as binding upon such person for all purposes of the Plan as if it had been received, whether actually received or not. If a person fails to give notice of his or her correct address, the Plan Administrator, the Employer and Plan fiduciaries shall not be obliged to search for, or to ascertain, his or her whereabouts. 10.10 Limitation on Rights of Employees. Except as otherwise required --------------------------------- by law or in other written agreements between the Employer and Participant, nothing contained in the Plan shall give any Participant the right to be retained in the service of the Employer or to interfere with or restrict the right of the Employer, which is hereby expressly reserved, to discharge or retire any Participant at any time, with or without cause. Except as otherwise required by law or in other written agreements between the Employer and Participant, inclusion under the Plan will not give any Participant any right or claim to any benefit hereunder except to the extent such right has specifically become fixed under the terms of the Plan. If any dispute arises under the Plan between a Participant and the Employer or any of its subsidiaries, such subsidiary or any other Participant shall not be necessary parties to the 63 dispute and need not be named in any litigation. Except as otherwise provided herein, benefits under this Plan shall not be accelerated merely because there is a change in ownership of the Employer. This Plan shall not obligate the Employer to maintain a minimum net worth in order to insure payment of benefits. The doctrine of substantial performance shall have no application to Employees or Participants. Each condition and provision, including numerical items, has been carefully considered and constitutes the minimum limit on performance which will give rise to the applicable right. 10.11 Restrictions. A Participant shall not at any time, either ------------ directly or indirectly, accept employment with, render service, assistance or advice to, or allow his or her name to be used by any competitor of the Employer unless approved by the Executive Committee of the Board of Directors. Determination by the Executive Committee of the Board of Directors that the Participant has engaged in any such activity shall be binding and conclusive on all parties, and in addition to all other rights and remedies which the Employer shall have, the Participant shall not be entitled to any payments hereunder. This provision shall cease to apply upon a change in control, as defined in Section 5.1(b)(ii). 64 10.12 Service of Process. The Secretary of Bergen Brunswig Corporation ------------------ is hereby designated as agent for the service of legal process on the Plan. 10.13 Spouse's Interest. The interest in the benefits hereunder of a ----------------- Spouse of a Participant who has predeceased the Participant shall automatically pass to the Participant and shall not be transferable by such Spouse in any manner, including but not limited to such Spouse's will, nor shall such interest pass under the laws of intestate succession. 10.14 Distribution in the Event of Taxation. If, for any reason, all ------------------------------------- or any portion of a Participant's benefit under this Plan becomes taxable to the Participant prior to receipt, a Participant's Employer shall distribute to the Participant immediately available funds in an amount equal to the taxable portion of his or her benefit. 10.15 Governing Law. Subject to ERISA, the Plan shall be interpreted, ------------- administered and enforced in accordance with the internal laws of the State of California without regard to its conflicts of laws principles. 10.16 Plurals. Where the context so indicates, the singular shall ------- include the plural and vice versa. 65 10.17 Titles. Titles are provided herein for convenience only and are ------ not to serve as a basis for interpretation or construction of the Plan. 10.18 References. Unless the context clearly indicates to the ---------- contrary, a reference to a Plan provision, statute, regulation or document shall be construed as referring to any subsequently enacted, adopted or executed counterpart. 10.19 Entire Agreement. This Plan contains the full and complete ---------------- understanding of the parties with respect to the subject matter hereof and supersedes all prior representations and understandings, whether oral or written. 10.20 Severability. In the event that any provision hereof or any ------------ obligation or grant of rights herein is found invalid or unenforceable pursuant to judicial decree or decision, any such provision, obligation or grant of rights shall be deemed and construed to extend only to the maximum extent permitted by law, and the remainder of this Plan shall remain valid and enforceable according to its terms. 10.21 Withholding. Anything in this Plan to the contrary ----------- notwithstanding, all payments required to be made hereunder to a Participant or Beneficiaries shall be subject to the withholding of such amounts relating to 66 taxes as the Plan Administrator may reasonably determine should be withheld pursuant to any applicable law or regulation. IN WITNESS WHEREOF, the Company has caused this Amendment and Restatement to be executed by its duly authorized officer as of the ________ day of ____________, 1996. By Order of the Board of Directors of BERGEN BRUNSWIG CORPORATION, a New Jersey corporation By:________________________________ Executive Vice President, Chief Legal Officer and Secretary 67 EX-10.2 6 FORM OF AMENDED AND RESTATED BERGEN BRUNSWIG CORPORATION CAPITAL ACCUMULATION PLAN FORM OF AMENDED AND RESTATED BERGEN BRUNSWIG CAPITAL ACCUMULATION PLAN TABLE OF CONTENTS ----------------- Page ---- ARTICLE I PLAN HISTORY................................................... 1 ARTICLE II DEFINITIONS................................................... 2 2.1 "Beneficiary"................................................... 2 2.2 "Benefit"....................................................... 2 2.3 "Benefit Bank".................................................. 2 2.4 "Board of Directors"............................................ 2 2.5 "Change in Control"............................................. 2 2.6 "Code".......................................................... 3 2.7 "Compensation".................................................. 3 2.8 "Election Period"............................................... 3 2.9 "Employee"...................................................... 4 2.10 "Employer"...................................................... 4 2.11 "Employment".................................................... 5 2.12 "ERISA"......................................................... 5 2.13 "Executive Plan"................................................ 5 2.14 "Key Management Plan"........................................... 5 2.15 "Lump Sum Election"............................................. 6 2.16 "Lump Sum Payment".............................................. 6 2.17 "Master Trust Agreement"........................................ 6 2.18 "Outside Director Plan"......................................... 6 2.19 "Participant"................................................... 6 2.20 "Plan".......................................................... 7 i 2.21 "Plan Administrator"............................................ 7 2.22 "Plan Rules".................................................... 7 2.23 "Plan Year"..................................................... 7 2.24 "Retirement".................................................... 7 2.25 "Spouse"........................................................ 8 2.26 "Vested"........................................................ 8 ARTICLE III PARTICIPATION................................................ 9 3.1 Requirements for Participation.................................. 9 3.2 Former Participants............................................. 10 3.3 Future Participants............................................. 10 ARTICLE IV AMOUNT OF BENEFIT............................................. 11 4.1 Determination of Benefit Amount................................. 11 4.2 Benefit Bank.................................................... 12 4.3 Loans to Participants in the Executive Plan..................... 14 ARTICLE V BENEFIT ACCRUAL AND VESTING.................................... 16 5.1 Amount of Benefit Payable....................................... 16 5.2 Accrual of Benefits............................................. 16 5.3 Vesting of Accrued Benefit...................................... 18 5.4 Acceleration of Benefits Upon Change in Control................. 20 5.5 Forfeiture of Benefits.......................................... 23 ARTICLE VI PAYMENT OF BENEFITS........................................... 23 6.1 Distribution on Retirement or Termination of Employment......... 23 6.2 Distribution on Death........................................... 25 6.3 Funeral Benefit................................................. 28 6.4 Delay in Distribution........................................... 28 ii 6.5 Suspension of Benefits.......................................... 29 6.6 Lump-Sum Election............................................... 29 ARTICLE VII ADMINISTRATION OF THE PLAN................................... 31 7.1 Duties of the Plan Administrator................................ 31 7.2 Delegation of Administrative Responsibility..................... 32 7.3 Compensation, Expenses and Indemnity............................ 33 7.4 Claims Procedure................................................ 34 7.5 Effect of Plan Administrator Action............................. 37 ARTICLE VIII AMENDMENT AND TERMINATION OF THE PLAN....................... 38 8.1 Amendments...................................................... 38 8.2 Termination of Plan............................................. 39 ARTICLE IX MISCELLANEOUS PROVISIONS...................................... 40 9.1 Payments........................................................ 40 9.2 Consolidation or Merger of Companies............................ 41 9.3 Alienation...................................................... 42 9.4 Division of Benefits by Domestic Relations Orders.......................................................... 43 9.5 Duty to Provide Data............................................ 47 9.6 Limitation on Rights of Employees............................... 48 9.7 Restrictions.................................................... 49 9.8 Service of Process.............................................. 49 9.9 Governing Law................................................... 49 9.10 Plurals......................................................... 50 9.11 Titles.......................................................... 50 9.12 References...................................................... 50 EXHIBIT A PLAN RULES..................................................... 51 iii iv AMENDED AND RESTATED BERGEN BRUNSWIG CAPITAL ACCUMULATION PLAN ARTICLE I --------- PLAN HISTORY ------------ Bergen Brunswig Corporation adopted the Bergen Brunswig Capital Accumulation Plan in 1980. This document restates the Plan, effective July 1, 1980, and incorporates Amendment No. 1 and Amendment No. 2. The Plan is a non-qualified deferred compensation plan. Benefits under the Plan are unfunded and unsecured. Persons become participants upon meeting the Plan's eligibility requirements. Benefits under the Plan are distributed on account of a Participant's retirement or death. Loans are available to certain participants. The Plan is not intended to qualify under the Internal Revenue Code. However, the Plan is a pension benefit plan subject to the Employee Retirement Income Security Act of 1974 ("ERISA"). - 1 - ARTICLE II ---------- DEFINITIONS ----------- The following terms, when capitalized, shall have the meaning specified below unless the context clearly indicates to the contrary. 2.1 "Beneficiary" shall mean a person or entity entitled under ----------- Article VI to receive a Participant's Benefit on his or her death. 2.2 "Benefit" shall mean a lump sum or annual amount payable from the ------- Plan to a Participant or his or her Beneficiary, as more fully described in Articles IV, V and VI. 2.3 "Benefit Bank" shall mean the amount available to a Participant ------------ to be applied to purchase Benefits or loans hereunder. The Employer pays the entire cost of the Plan. 2.4 "Board of Directors" shall mean the Board of Directors of Bergen ------------------ Brunswig Corporation. For purposes of this Plan, outside directors are considered "Employees." 2.5 "Change in Control" shall have the same definition as contained ----------------- in Section 1.5(c) of the Master Trust Agreement and be fully incorporated herein. - 2 - 2.6 "Code" shall mean the Internal Revenue Code of 1954, as amended ---- from time to time. 2.7 "Compensation" shall mean the annual cash salary payable to a ------------ Participant as of the latest of (1) July 1, 1980 (July 1, 1983 in the case of the Key Management Plan), (2) the date the individual first becomes a Participant, or (3) the effective date of a periodic adjustment to the Participant's Compensation by the Plan Administrator. Compensation shall include the earnings waived by the Participant pursuant to a salary reduction arrangement under any cash or deferred or cafeteria plan which is maintained by the Employer and which is intended to qualify under Code Section 401(k) or 125, or pursuant to a salary reduction arrangement which is not part of such a plan. In no event shall a Participant's Compensation include bonuses or cash payments other than salary. By written notice to a Participant, the Plan Administrator may periodically adjust the Participant's Compensation to reflect his or her current salary. 2.8 "Election Period" shall mean the period beginning one hundred --------------- eighty (180) days prior to the date on which a Participant attains his or her applicable Retirement age (see Section 2.19) and ending thirty (30) days prior to the date on which a Participant attains his or her applicable Retirement age - 3 - (see Section 2.19), during which a Participant may make a Lump Sum Election, as more fully detailed in Article VI. 2.9 "Employee" shall mean an individual who renders services to the -------- Employer as a common law employee or officer (i.e., a person whose wages from the Employer are subject to federal income tax withholding). A member of the Board of Directors who is not otherwise an Employee shall be considered an Employee solely for purposes of this Plan. Except for directors, a person rendering services to the Employer purportedly as an independent contractor shall not be treated as an Employee before the Employer has acknowledged that it must withhold federal income taxes from his or her pay. For purposes of this Plan, an individual shall remain an "Employee" if he or she ceases to work for the Employer for the purposes of taking an Employer-arranged job (see Section 6.4(b)). 2.10 "Employer" shall mean Bergen Brunswig Corporation and any related -------- company designated by Bergen Brunswig Corporation. In contexts in which actions are required or permitted to be taken or notice is to be given, the Employer shall mean Bergen Brunswig Corporation. - 4 - 2.11 "Employment" shall mean the period during which an individual is ---------- an Employee. Employment shall commence on the day the individual first performs services for the Employer as an Employee and shall terminate on the day such services cease. 2.12 "ERISA" shall mean the Employee Retirement Income Security Act of ----- 1974. 2.13 "Executive Plan" shall mean the portion of this Plan which covers -------------- eligible officers of the Employer. The Executive Plan provides monthly retirement benefits of one hundred percent of Compensation beginning at age sixty-two and continuing until age eighty, or, alternatively, a lump sum payment, and also permits loans before retirement. 2.14 "Key Management Plan" shall mean the portion of this Plan which ------------------- covers eligible officers of a subsidiary of the Employer and eligible directors of a corporate department of the Employer. The Key Management Plan provides monthly retirement benefits of fifty percent of Compensation beginning at age sixty-two and continuing until age seventy-seven, or, alternatively, a lump sum payment, but does not provide for loans. - 5 - 2.15 "Lump Sum Election" shall mean the election by a Participant to ----------------- receive a lump sum payment of his Vested Accrued Benefit instead of a series of monthly payments, as more fully described in Article VI. 2.16 "Lump Sum Payment" shall mean the single lump sum payment made to ---------------- a Participant having in effect a valid Lump Sum Election. The Lump Sum Payment equals the present value of the stream of monthly payments to which a Participant would be entitled but for his or her Lump Sum Election, as more fully described in Article VI. 2.17 "Master Trust Agreement" shall mean the Master Trust Agreement ---------------------- dated December 27, 1994 between Employer and Wachovia Bank of North Carolina, N.A., as Trustee. 2.18 "Outside Director Plan" shall mean the portion of this Plan which --------------------- covers eligible members of the Board of Directors who are not common law employees of the Employer. The Outside Director Plan provides annual retirement benefits of $15,000 beginning at age seventy and continuing until age eighty, or, alternatively, a lump sum payment. 2.19 "Participant" shall mean any person who is included in the Plan ----------- pursuant to Article III. A Participant shall cease to be a Participant at the - 6 - time determined under Section 3.1(d). 2.20 "Plan" shall mean this document. The Plan consists of three ---- components: the Executive Plan, the Key Management Plan and the Outside Director Plan, as more fully described in this document. 2.21 "Plan Administrator" shall mean Bergen Brunswig Corporation, ------------------ acting through its chief executive officer or such officer's delegate. The Plan Administrator is the Plan's "named fiduciary" within the meaning of Section 402(a)(2) of ERISA. 2.22 "Plan Rules" shall mean rules adopted by the Plan Administrator ---------- in accordance with Section 7.1(e) for the administration, interpretation or application of the Plan. See Exhibit A for more details on Plan Rules. 2.23 "Plan Year" shall mean the fiscal year of the Plan, which is --------- presently the twelve month period ending on June 30. 2.24 "Retirement" shall mean a Participant's termination of Employment ---------- or disability retirement (to the extent permitted by the next sentence) on or after the date he or she attains age sixty-two (age seventy, in the case of a - 7 - Participant in the Outside Director Plan). A Participant who becomes totally and permanently disabled (as determined by the Plan Administrator) while a Participant and prior to attainment of his or her applicable Retirement age (sixty-two or seventy) and remains disabled shall take Retirement on the date the Participant attains his or her Retirement age (or such earlier date as the Plan Administrator may determine in its discretion if a delay in Retirement would result in financial hardship to the Participant). 2.25 "Spouse" shall mean the person to whom a Participant is legally ------ married at the time in question under the laws of the state in which the Participant then resides (excluding a common-law spouse). A person shall cease to be a Spouse when his or her marriage to the Participant is deemed dissolved or annulled under the laws of the state in which the Participant then resides. 2.26 "Vested" shall mean non-forfeitable. would be entitled but for ------ his or her Lump Sum Election, as more fully described in Article VI. - 8 - ARTICLE III ----------- PARTICIPATION ------------- 3.1 Requirements for Participation ------------------------------ (a) Executive Plan: A person shall become a Participant in the Executive Plan on the later of (1) the date he or she becomes an officer of Bergen Brunswig Corporation or (2) the date he or she is notified by the Plan Administrator in writing that he or she has become a Participant. (b) Key Management Plan: A person shall become a Participant in the Key Management Plan on the later of (1) the date he or she is an officer of a wholly-owned subsidiary of Bergen Brunswig Corporation or a director of a corporate department of Bergen Brunswig Corporation and has been an Employee for at least one full year or (2) the date he or she is notified by the Plan Administrator in writing that he or she has become a Participant. (c) Outside Director Plan: A person shall become a Participant in the Outside Director Plan on the earlier of (1) the date he or she has been an outside member of the Board of Directors for at least three consecutive years or (2) the date he or she is notified by the Plan Administrator in writing that he or she has become a Participant. (d) A Participant shall cease to be a Participant when his or her Employment terminates (see Section 2.9), unless the Participant becomes - 9 - totally and permanently disabled while a Participant, in which case he or she shall remain a Participant until his or her Retirement (as more fully provided in Section 2.19). 3.2 Former Participants ------------------- A former Participant who requalifies for the Plan shall again become a Participant as permitted by the Plan Administrator. A former Participant's prior service with the Employer shall be taken into account for purposes of this Plan only to the extent specified by the Plan Administrator. 3.3 Future Participants ------------------- Effective October 7, 1987, the Plan, including each of its component plans, is hereby frozen to new participants. Hence, on and after that date, no one shall become a member of the Plan, or, if already a member of one of its component plans, become a member of any of its other component plans. - 10 - ARTICLE IV ---------- AMOUNT OF BENEFIT ----------------- 4.1 Determination of Benefit Amount -------------------------------- Subject to accrual and vesting (see Article V), the Benefit payable to a Participant under the Plan shall be calculated as follows: (a) Executive Plan: For a Participant in the Executive Plan, the Benefit shall be the Benefit which can be "purchased" under Section 4.2 with his or her Benefit Bank, up to a maximum Benefit of one hundred percent of his or her Compensation. Loans are also available under this Plan (see Section 4.3). (b) Key Management Plan: A Participant in the Key Management Plan shall receive the same Benefit as an Executive Plan Participant, except that the maximum Benefit shall be fifty percent (not one hundred percent) of his or her Compensation. Loans are not available under this Plan. (c) Outside Director Plan: The Benefit of a Participant in the Outside Director Plan shall be $15,000. Loans are not available under this Plan. (d) If a Participant is transferred from the Key Management Plan to the Executive Plan, the Participant's Benefit shall be calculated under the Executive Plan based on his or her Compensation as of the date of transfer, - 11 - which shall replace any Benefit earned under the Key Management Plan. 4.2 Benefit Bank ------------ (a) Each Participant in the Executive Plan and the Key Management Plan shall have a Benefit Bank, which shall be credited with the amount determined under the applicable schedule below:
EXECUTIVE PLAN BENEFIT BANK --------------------------- Years of Continuous Employment Since Most Recent Date of Hire Benefit Bank Credit - ------------------------------ ------------------- 4 or less 12.50% of Compensation 5 through 9 18.75% of Compensation 10 or more 25.00% of Compensation
KEY MANAGEMENT PLAN BENEFIT BANK -------------------------------- Years of Continuous Employment Since Most Recent Date of Hire Benefit Bank Credit - ------------------------------ ------------------- 4 or less 9.375% of Compensation 5 through 9 14.0625% of Compensation 10 or more 18.75% of Compensation If a Participant becomes totally and permanently disabled while an Employee and prior to Retirement, the period of disability shall count as continuous employment. (b) A Participant's Benefit Bank shall be charged for the cost of his or her Benefit and, under the Executive Plan, for the cost of loans made - 12 - to the Participant. The "cost" of a Benefit shall be fifty-four percent (thirty-four percent prior to June 21, 1986) of the annual premium for life insurance based on life insurance industry standards for a person of the Participant's age and sex for the purpose of providing the Benefit (such cost to be determined by the Plan Administrator). (This life insurance is an asset of the Employer and does not "fund" Benefits within the meaning of Section 83 (or any successor provision) of the Code.) If the "cost" of the Benefit (combined with the amount charged for all loans to the Participant under the Executive Plan) exceeds the Participant's Benefit Bank, the Benefit (and/or the amount available for a loan under the Executive Plan) shall be reduced to the extent necessary to eliminate the excess. The Participant must take, but need not pass, a life insurance physical examination in order to qualify for a Benefit. The Benefit Bank of a Participant in the Executive Plan who borrows money pursuant to the Plan shall be reduced by an amount equal to ten percent of the amounts loaned to the Participant. This reduction may, at the discretion of the Plan Administrator, be cancelled when all or part of the loan is repaid. The amount of the reduction to be cancelled, if any, shall be equal to ten percent of the loan amount repaid. (c) Once the cost of a Benefit or a loan has been charged to a Participant's Benefit Bank, the amount of the Benefit or the loan for which the charge was made shall not be reduced because of a subsequent reduction in the - 13 - Participant's Compensation or Benefit Bank or because of a subsequent increase in the "cost" of Benefits or loans. However, such changes shall be taken into account in determining the maximum amount of additional Benefits or loans available to the Participant. 4.3 Loans to Participants in the Executive Plan ------------------------------------------- (a) At the request of a Participant in the Executive Plan, the Employer shall loan money from its general assets to the Participant, in accordance with the rules and limits of subsection (b). (b) A Participant who wishes to borrow money pursuant to this Section shall file a written loan application with the Plan Administrator. No loan shall be granted unless all of the following requirements are met: (i) The loan shall not exceed one hundred twenty-five percent of the Participant's Compensation. In addition, no loan shall be made to the extent that it cannot be "funded" from the Participant's Benefit Bank (the amount charged to the Benefit Bank shall be ten percent of the principal amount loaned). In applying these loan limits, all loans to the Participant under this Plan (whether or not repaid) shall be aggregated with any proposed loan. - 14 - (ii) The loan shall normally be interest free, but interest at the rate of ten percent per annum may be charged at the discretion of the Plan Administrator. (iii) The loan shall be adequately secured by real or personal property of the Participant equivalent in value to one hundred twenty-five percent of the loan. (iv) Except as otherwise authorized by the Plan Administrator, principal on a loan must be repaid upon demand, but not later than the Participant's Retirement. (v) The loan shall be documented by such notes, evidences of indebtedness and other instruments executed by the Participant which the Plan Administrator in its discretion requires. - 15 - ARTICLE V --------- BENEFIT ACCRUAL AND VESTING --------------------------- 5.1 Amount of Benefit Payable -------------------------- The amount of a Participant's Benefit is determined under Article IV. The portion of the Benefit which is actually payable is determined by first applying the accrual schedule in Section 5.2 to the Benefit determined under Article IV and then applying the vesting schedule in Section 5.3 to the resulting amount. 5.2 Accrual of Benefits ------------------- (a) Executive Plan and Key Management Plan: The portion of a Participant's Benefit under the Executive Plan or the Key Management Plan which has accrued (the "Accrued Benefit") shall be determined under the following table at the same time that vesting is determined under Section 5.3(a):
Percentage of Years of Service Benefit Accrued ----------------- --------------- 1 but less than 5 50% 5 but less than 10 75% 10 or more 100%
(b) Outside Director Plan: The portion of a Participant's Benefit under the Outside Director Plan which has accrued (the "Accrued Benefit") shall be determined under the following table at the same time that - 16 - vesting is determined under Section 5.3(a):
Percentage of Years of Service Benefit Accrued ---------------- --------------- 2 or less 0% 3 30% 4 40% 5 50% 6 60% 7 70% 8 80% 9 90% 10 or more 100%
(c) The term "years of service" under the Executive and Key Management Plans shall mean the full number of years during a Participant's most recent period of Employment with Bergen Brunswig Corporation, its subsidiaries and companies acquired by Bergen Brunswig Corporation, and for the Outside Director Plan shall mean the full number of years while a Participant is a member of the Board of Directors (including, in either case, any time during the relevant period while the Participant was totally and permanently disabled, within the meaning of Section 2.19, if the disability commenced while the person was a Participant and prior to the earlier of his or her Retirement or termination of Employment). Prior periods of Employment shall also be taken - 17 - into account to the extent specified by the Plan Administrator. In the event of a Participant's death prior to the earlier of his or her Retirement or termination of Employment, years of service shall be calculated as if the Participant had survived to his or her applicable Retirement age (see Section 2.19). 5.3 Vesting of Accrued Benefit -------------------------- (a) A Participant's Accrued Benefit under the Plan is not Vested until the earliest of the Participant's Retirement, death, or termination of Employment (provided such termination is on good terms, as determined in the sole discretion of the Plan Administrator, and the Participant signs a general release in a form which approximates the form attached hereto as Exhibit B), except as otherwise provided in Section 5.4 hereof. At that time, the Accrued Benefit (as determined under Section 5.2) shall vest in whole or in part in accordance with this Section and the Vested portion of the Accrued Benefit shall be paid in accordance with Article VI. (b) The Accrued Benefit of a Participant who takes Retirement or dies while an Employee shall become one hundred percent Vested. The Accrued Benefit of a Participant whose Employment terminates prior to his or her Retirement or death shall be vested as determined under the following table: - 18 -
Years in a Qualified Vested Percentage Job Category of Accrued Benefit -------------------- ------------------ 2 or less 0% 3 30% 4 40% 5 50% 6 60% 7 70% 8 80% 9 90% 10 or more 100%
(c) The term "years in a qualified job category" shall mean the full number of years during a Participant's most recent period of Employment (including any time during that period while the Participant was totally and permanently disabled, within the meaning of Section 2.19, if the disability commenced while the person was a Participant and prior to the earlier of his or her Retirement or termination of Employment) and while the Participant held the position of "Director of the Board" for purposes of the Outside Director Plan, or "Corporate Officer" of the Employer for purposes of the Executive Plan, or "Director" of a corporate department of the Employer or "Officer" of a wholly-owned subsidiary of the Employer for purposes of the Key Management Plan. A Participant who transfers directly from a position covered by the Plan to a position with the Employer which is not covered by the Plan shall continue to - 19 - earn years in a qualified job category until the earliest of his or her termination of Employment, death or Retirement. Prior periods of Employment shall also be taken into account to the extent specified by the Plan Administrator, but employment with a company before it was acquired by the Employer shall not count. A Participant who delays Retirement beyond his or her applicable Retirement age (see Section 2.19) with the written approval of the Plan Administrator shall have his or her years in a qualified job category while Retirement is delayed taken into account under this Section for vesting purposes. 5.4 Acceleration of Benefits Upon Change in Control. ----------------------------------------------- (a) Notwithstanding any other provisions of this Plan, upon a Change in Control, each Participant shall be entitled to benefits under the Plan in accordance with the following: (A) As of the date of the Change in Control, such Participant shall be deemed to have attained (if he has not already done so) the age of sixty-two; (B) with respect to each year between such Participant's actual age as of the date of the Change in Control (if less than the age of sixty-two) and the age of sixty-two (the "Interim Period"), such Participant shall be deemed to have been continuously employed by the Company in, and to have continuously performed the duties of, the position with the - 20 - Company that such Participant held as of the date of the Change in Control; (C) such Participant shall be deemed to be entitled to full service credit for all times during the Interim Period; (D) such Participant's annual cash salary as of the date of the Change in Control shall be deemed to have increased at a rate of 4.0% per year each year during the Interim Period, resulting in a corresponding increase in Participant's Compensation for purposes of the Plan; (E) such Participant's Benefit under the Plan shall be calculated in accordance with the assumptions set forth in the preceding clauses (A) - (D); (F) such Participant's Benefit shall be deemed to be fully Accrued and fully Vested as of the date of the Change in Control; and (G) prior to or upon the consummation of the transactions giving rise to the Change in Control, the Company shall pay to such Participant, by certified or bank cashier's check, a Lump Sum Payment calculated in accordance with this Section 5.4(a) and Section 6.6(d) hereof as if such Participant had made a valid Lump Sum Election. (b) In the event of a Change in Control, upon payment to each Participant of the Lump Sum Payment referred to in clause (G) of Section 5.4(a) above, the Company shall also pay to such Participant, by certified or bank cashier's check, a cash lump sum payment equal to (x) the amount of excise tax for which such Participant is or may become liable under Internal Revenue Code Section 4999 (or any successor provision) with respect to the payments under - 21 - this Section 5.4, taking into account all compensation includable in the computation under Internal Revenue Code Section 280G (or any successor provision), including, without limitation, payments under this Section 5.4(b), plus (y) the amount of such Participant's income tax liability arising from the Company's payment of the excise tax liability referred to in the preceding clause (x), such that the payments under clauses (x) and (y) taken together shall provide such Participant with sufficient after-income tax dollars to pay such Participant's liability for Internal Revenue Code Section 4999 excise taxes. The maximum combined marginal federal and applicable state(s) income tax rate in effect for the year in which the payments under this Section 5.4(b) are to be made shall be used in computing the amount of such payments. In the event that the Company and the Participant are unable to agree upon the amount of the payment required under this Section 5.4(b), such amount shall be determined by Tax Counsel (as defined below). The decision of such Tax Counsel shall be final and binding upon both the Company and the Participant. All fees and expenses of such Tax Counsel shall be paid by the Company. As used in this Section 5.4(b), the term "Tax Counsel" shall mean an attorney at law or certified public accountant who is a partner at a law firm of at least 25 attorneys or a partner - 22 - at a "Big 6" accounting firm, respectively, provided that such firm has not provided services to the Company or the respective Participant or any affiliate of the Company or such Participant within the last year. (c) Upon the occurrence of a Change in Control, (x) this subsection 5.4 shall become irrevocable, and (y) Sections 5.3(a), 7.4(g), 7.5(b) and 9.7 hereof shall cease to apply, none of such sections shall ever thereafter be reinstated, and no similar provisions shall ever be adopted hereunder. 5.5 Forfeiture of Benefits ---------------------- The unvested portion of the Accrued Benefit of a Participant whose Employment terminates prior to his or her Retirement or death shall be forfeited on the date Employment terminates. If the person again becomes a Participant, forfeited Benefits shall only be restored to the extent specified by the Plan Administrator. ARTICLE VI ---------- PAYMENT OF BENEFITS ------------------- 6.1 Distribution on Retirement or Termination of Employment ------------------------------------------------------- (a) In General: A Participant's Vested Accrued Benefit shall be distributed to him or her in the event of his or her Retirement. Unless a Participant has in effect a valid Lump Sum Election under Section 6.6, the - 23 - distribution of a Participant's Vested Accrued Benefit shall be made in monthly installments equal to one-twelfth of the Participant's annual Vested Accrued Benefit, commencing on the first day of the month following the month in which the Participant's Retirement occurs and ending with the month in which the following occurs:
Key Outside Executive Plan Management Plan Director Plan - -------------- --------------- -------------- the earlier of the earlier of the earlier of attainment of attainment of attainment of age 80 or payment age 77 or payment age 80 or payment of 216 monthly of 180 monthly of 120 monthly installments installments installments
(b) The Vested Accrued Benefit of a Participant who has a termination of Employment prior to his or her Retirement or death (provided such termination is on good terms, as determined in the sole discretion of the Plan Administrator, and the Participant signs a general release in a form which approximates the form attached hereto as Exhibit B) shall be paid in monthly installments in a manner similar to that in Section 6.1(a), commencing on the first day of the month following the month in which a Participant attains his or her applicable Retirement age (see Section 2.19) or dies, if earlier. (c) Under the Outside Director Plan: Distribution shall be made in monthly installments equal to one-twelfth of the Participant's annual Vested Accrued Benefit, commencing as of the first day of the month following the month in which the Participant's Retirement occurs and ending with the month in which - 24 - occurs the earlier of the Participant's attainment of age 80 or payment of 120 monthly installments. (d) Under the joint and survivor annuity form available from the Executive and Key Management Plans, a Participant's Vested Accrued Benefit is subsidized by the Employer, i.e., there normally is no reduction in the Participant's Vested Accrued Benefit to provide a joint and survivor annuity. However, if the Participant's Spouse or Beneficiary is more than ten years younger than the Participant, the Participant's Vested Accrued Benefit shall be reduced as provided in the following formula: Participant's Accrued Benefit times the percentage result obtained when taking the number of years more than 10 that Participant is older than Participant's Spouse divided by 100 (e.g., Participant age 55, Participant's Spouse age 44 = 11 years spread; 11 - 10 = 1/100 = 1% reduction) 6.2 Distribution on Death --------------------- (a) Unless a Participant has in effect a valid Lump Sum Election under Section 6.6, upon the death or presumed death of a Participant prior to Retirement, the Participant's Vested Accrued Benefit shall be paid to the Participant's Beneficiary (as determined under subsection (d)). Distribution - 25 - shall be made in monthly installments equal to one-twelfth of the Participant's annual Vested Accrued Benefit, commencing on the first day of the month following the month in which the Participant dies (or is presumed dead) and ending with the month in which the Participant's Benefit would have terminated under Section 6.1 had the Participant's Retirement occurred on the date of his or her death. (b) Upon the death or presumed death of a former Participant in the Outside Director Plan after his or her Retirement but before receiving the total number of Benefit payments to which the Participant is entitled under Section 6.1(c), the remaining payments shall be paid to the Participant's Beneficiary. Distribution shall commence on the first day of the month following the month in which the Participant dies (or is presumed dead). (c) Amounts payable under this Section shall be paid to the highest priority Beneficiary surviving at the time distribution actually commences. Beneficiary priorities are as follows: (i) First, to the person or entity properly designated by the Participant as his or her Beneficiary for purposes of this Plan. Each Participant may designate, revoke and redesignate Beneficiaries. This action shall be taken in writing on a form provided by the Plan Administrator and shall be effective upon delivery to the Plan Administrator. - 26 - (ii) Second, to the person or persons properly designated by the Participant as his or her beneficiary under a group life insurance policy maintained by the Employer, if no Beneficiary designation under paragraph (i) is on file. (iii) Third, to the Participant's surviving Spouse, if any, and otherwise to the heirs at law (including the Participant's estate), if any, as determined in the reasonable judgment of the Plan Administrator under applicable state law governing succession to personal property. (d) Members of a priority class (other than the Participant's surviving Spouse) shall cease to be entitled to Benefits upon the Plan Administrator's determination that no members of the class exist or the Plan Administrator's failure to locate any members of the class after making reasonable efforts to do so for one year. If all or part of the Participant's Benefit is distributable to his or her surviving Spouse, such Benefit shall be distributed to the Spouse or, in the event of the Spouse's death prior to commencement or completion of distribution, to the estate of the Spouse. (e) If the Plan Administrator determines that no person eligible to receive the Participant's Benefit exists or can be located, the Benefit shall be forfeited. The costs of settling any dispute involving the right of a person - 27 - to a Participant's Benefit after the Participant's death shall be charged to the Participant's Benefit, which shall be reduced by the amount of the costs incurred, except as otherwise directed by the Plan Administrator. 6.3 Funeral Benefit --------------- In addition to any Vested Accrued Benefit payable hereunder, a Participant's Beneficiary (as determined under Section 6.2(c)) shall be paid a cash lump sum in the amount of $5,000 to cover funeral expenses of the Participant. This additional benefit shall only be paid if the Beneficiary notifies the Employer in writing of the Participant's death and the Participant has a Vested Accrued Benefit either before death or by reason of death, without regard to whether any or all of the Vested Accrued Benefit has been paid. 6.4 Delay in Distribution --------------------- (a) If the amount payable under this Article cannot be ascertained or the person to whom it is payable has not been determined or located and reasonable efforts to do so have been made, then distributions under this Article shall commence, retroactive to the date they would normally have commenced, within a reasonable time after such amount is ascertained or such person is determined or located. - 28 - (b) Distribution of Benefits to a Participant shall not be triggered by the transfer of the Participant to any other job (whether or not with the Employer or an affiliate) if the transfer is arranged by the Employer. The Participant's Benefit will commence when the Participant ceases to be employed be the Employer or by any other company for which the Participant worked in an Employer-arranged job. 6.5 Suspension of Benefits ---------------------- Benefits which are in pay status shall not be suspended if a Participant subsequently performs services for the Employer in any capacity after Retirement. 6.6 Lump-Sum Election ----------------- (a) Instead of receiving the distribution of his or her Vested Accrued Benefit in monthly installments as described in Section 6.1(a), a Participant may elect to receive his or her distribution as a single Lump Sum Payment. The Lump Sum Payment of a Participant having in effect a valid Lump Sum Election shall be paid on the first day of the month following the earlier of the month in which the Participant's Retirement occurs or the month in which the Participant dies. If the Participant having in effect a valid Lump Sum Election dies prior to the time the Lump Sum Payment is made to him or her, that - 29 - Participant's Lump Sum Payment shall be paid to the Participant's Beneficiary (as determined under Section 6.2(c)). (b) In order for a Participant's Lump Sum Election to be valid, each of the following requirements must be met: (i) The Participant must give written notice to the Plan Administrator that the Participant is making a Lump Sum Election. This written notice shall be on a form provided by the Plan Administrator and shall be effective upon delivery to the Plan Administrator; (ii) The Participant's Lump Sum election must be made during the Election Period; (iii) The Participant must be an Employee as of the date he or she attains his or her applicable Retirement age (see Section 2.19), or if earlier, the Participant must be an Employee as of the date of his or her death; and (iv) The Participant must take Retirement (or die) after December 13, 1990. (c) A Participant may revoke a Lump Sum Election by delivering written notice to such effect to the Plan Administrator prior to the end of the Election Period. A Participant's Lump Sum Election that has not been revoked prior to the end of the Election Period shall be irrevocable. If a Participant makes multiple Lump Sum elections and revocations, the last such election or - 30 - revocation made during the Election Period shall be controlling. (d) A Participant's Lump Sum Payment shall equal the discounted present value of the monthly payments that would have been payable to the Participant under Section 6.1(a) had no Lump Sum Election been in effect. Effective January 1, 1995 for purposes of making this present value calculation, the "immediate rate" published by the Pension Benefit Guaranty Corporation, or such other index as selected by the Plan Administrator then in effect at the time of payment, shall be used. ARTICLE VII ----------- ADMINISTRATION OF THE PLAN -------------------------- 7.1 Duties of the Plan Administrator -------------------------------- The Plan Administrator shall be responsible for the general administration and management of the Plan. The Plan Administrator shall have all powers and duties necessary to fulfill its responsibilities, including, but not limited to, the following powers and duties: (a) To determine all questions relating to the eligibility of persons to participate; (b) To determine the amount and kind of benefits payable to Participants and their Beneficiaries; - 31 - (c) To maintain all records necessary for the administration of the Plan; (d) To provide for disclosure of all information and filing or provision of all reports and statements to Participants, Spouses, Beneficiaries or governmental bodies as shall be required by ERISA or any other federal law; (e) To adopt or modify Plan Rules for the regulation or application of the Plan (see Exhibit A); such Rules may establish administrative procedures or requirements which modify the terms of this Plan but Plan Rules shall not substantially alter significant requirements or provisions of the Plan; (f) To administer the claims procedure set forth in Section 7.4; (g) To delegate any power or duty to any firm or person in accordance with Section 7.2; and (h) To exercise all other powers or duties granted to the Plan Administrator by other provisions of the Plan. 7.2 Delegation of Administrative Responsibility ------------------------------------------- (a) The Plan Administrator may delegate all or any portion of its administrative responsibilities with respect to the Plan to any other person pursuant to this Section. - 32 - (b) A delegation under this Section shall be accomplished by a written instrument executed by the Plan Administrator specifying responsibilities delegated and the fiduciary responsibilities allocated to such delegate. The delegation of such responsibilities shall be effective upon the date specified in the delegation, subject to written acceptance by the delegate. Any delegation of responsibilities shall provide for reports, no less often than annually, by such delegate to the Plan Administrator of such information necessary to fully inform the Plan Administrator of the status and operation of the Plan and of the delegate's discharge of responsibilities delegated. 7.3 Compensation, Expenses and Indemnity ------------------------------------- (a) The Plan Administrator and any delegate under Section 7.2 who is an Employee shall serve without compensation for services to the Plan. The Employer shall furnish the Plan Administrator or any such delegate with all clerical or other assistance necessary in the performance of his or her duties. The Plan Administrator is authorized to employ such legal counsel and advisors as it may deem advisable to assist in the performance of its duties hereunder. (b) All costs of administering the Plan (including the cost of legal services described in subsection (a)) shall be paid by the Employer. Except as the Plan Administrator otherwise directs, any expenses incurred in - 33 - resolving disputes among different claimants as to their entitlement to a Benefit shall be charged against the Benefit, which shall be reduced accordingly. (c) To the extent permitted by applicable law, the Employer shall indemnify and save harmless the Board of Directors, the Plan Administrator and any delegate appointed pursuant to Section 7.2 who is an Employee against any and all expenses, liabilities and claims (including legal fees incurred to defend against such liabilities and claims) arising out of their discharge in good faith of responsibilities under or incident to the Plan. Expenses and liabilities arising out of willful misconduct shall not be covered under this indemnity. This indemnity shall not preclude such further indemnities as may be available under insurance purchased by the Employer or provided by the Employer under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, as such indemnities are permitted under applicable law. Payments with respect to any indemnity and payment of expenses or fees shall be made only from assets of the Employer. 7.4 Claims Procedure ---------------- (a) Normally, a Participant, Spouse or Beneficiary need not present a formal claim for Benefits in order to qualify for rights or Benefits under this Plan. If, however, any person is not granted the rights or Benefits - 34 - to which the person believes himself or herself to be entitled, a formal claim for Benefits must be filed in accordance with this Section. A claim by any person shall be presented to the claims official appointed by the Plan Administrator in writing within the maximum time permitted by law or under regulations promulgated by the Secretary of Labor or his delegate pertaining to claims procedures. The claims official shall, within a reasonable time, consider the claim and shall issue his or her determination thereon in writing. If the claim is granted, the appropriate distribution or payment shall be made. (b) If the claim is wholly or partially denied, the claims official shall, within ninety days (or such longer period as may be reasonably necessary) provide the claimant with written notice of the denial, setting forth, in a manner calculated to be understood by the claimant (i) the specific reason or reasons for the denial, (ii) specific references to pertinent Plan provisions on which the denial is based, (iii) a description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why the material or information is necessary, and - 35 - (iv) an explanation of the Plan's claim review procedure. (c) Each claimant shall have the opportunity to appeal in writing the claims official's denial of a claim to a review official designated by the Plan Administrator for a full and fair review. The claimant or his or her duly authorized representative (i) may request a review by filing a written application with the review official, (ii) may review pertinent documents, and (iii) may submit issues and comments in writing. (d) The Plan Administrator may establish time limits within which a claimant may request review of a denied claim which are reasonable in relation to the nature of the benefit which is the subject of the claim and other attendant circumstances, but which shall not be less than sixty days after receipt by the claimant of written notice of denial of his or her claim. (e) The decision by the review official upon review of a claim shall be made not later than sixty days after his or her receipt of the request for review, unless special circumstances require an extension of time for processing, in which case a decision shall be rendered as soon as possible, but not later than one hundred twenty days after receipt of the request for review. - 36 - (f) The decision on review shall be in writing and shall include specific reasons for the decision written in a manner calculated to be understood by the claimant, with specific references to the pertinent Plan provisions on which the decision is based. (g) To the extent permitted by law, the decision of the claims official (if no review is properly requested) or the decision of the review official on review, as the case may be, shall be final and binding on all parties. No legal action for Benefits under the Plan shall be brought unless and until the claimant has exhausted his or her remedies under this Section. 7.5 Effect of Plan Administrator Action ----------------------------------- (a) All actions taken and all determinations made by the Plan Administrator in good faith shall be final and binding upon all Participants, Spouses, Beneficiaries and other persons interested in the Plan. To the extent the Plan Administrator has been granted discretionary authority under the Plan, its prior exercise of such authority shall not obligate the Plan Administrator to exercise its authority in a like fashion thereafter. (b) The Plan shall be interpreted by the Plan Administrator in accordance with its terms and their intended meaning. If, due to errors in drafting, a provision does not accurately reflect its intended meaning, as demonstrated by consistent interpretations by the Plan Administrator or other - 37 - evidence of intention, the provision shall be considered ambiguous and shall be interpreted by the Plan Administrator in a fashion consistent with its intent. The Plan Administrator, without the need for Board of Directors approval, shall amend the Plan retroactively to cure any such ambiguity. This subsection may not be invoked by a Participant, Beneficiary or any other person to require the Plan to be interpreted in a manner which is inconsistent with its interpretation by the Plan Administrator. ARTICLE VIII ------------ AMENDMENT AND TERMINATION OF THE PLAN ------------------------------------- 8.1 Amendments ---------- (a) The Employer reserves the right at any time to amend the Plan or to merge, consolidate, divide or otherwise restructure the Plan prospectively or retroactively. (b) All amendments or other changes shall be adopted in writing by resolution of the Board of Directors or, in the case of an amendment that does not substantially alter the nature or expense of the Plan, by the Plan Administrator without Board approval. However, the Plan Administrator may, by notice to a Participant without Board approval, increase the Participant's - 38 - Benefit or Benefit Bank at any time. (c) Any material modification of the Plan by amendment or termination shall be communicated to all interested parties in the time and manner required by law. (d) No Plan amendment, unless it expressly provides otherwise, shall be applied retroactively to increase the Vested percentage of a former Participant whose Employment terminated before the date the amendment became effective. (e) No Plan amendment, unless it expressly provides otherwise, shall be applied retroactively to increase the amount of service credited to any person for Employment before the date the amendment became effective. (f) Except as provided in subsections (d) and (e), all rights under the Plan shall be determined under the terms of the Plan as in effect at the time the determination is made. 8.2 Termination of Plan ------------------- The Plan is intended to be a permanent program, but the Employer shall have the right at any time to declare the Plan terminated completely as to it or as to any of the Employer's divisions, facilities, operational units or job classifications. If the Plan is terminated, all unvested Benefits shall be forfeited but all Vested Benefits shall remain payable. The Employer may - 39 - accelerate the payment of such Benefits, however, and pay the person entitled to the Benefit the present value of the remaining payments due (calculated using a reasonable interest assumption specified by the Plan Administrator). ARTICLE IX ---------- MISCELLANEOUS PROVISIONS ------------------------ 9.1 Payments -------- (a) In the event any amount becomes payable under the Plan to a minor or a person who, in the sole judgment of the Plan Administrator, is considered to be unable to give a valid receipt for the payment by reason of physical or mental condition, the Plan Administrator may direct that payment be made to any person found by the Plan Administrator, in its sole judgment, to have assumed the care of the person in question. Any payment made pursuant to such a finding shall constitute payment by the Plan and result in a full release and discharge of the Plan Administrator, the Employer and their officers, directors, employees, agents and representatives. (b) Payment of Benefits to the person entitled thereto may be made by a check sent first class mail, address correction requested, to the last known address on file with the Plan Administrator. If within six months from - 40 - the date of issuance of the check the payment letter cannot be delivered to the person entitled thereto or the check has not been negotiated, all further Benefits under the Plan may be forfeited at the discretion of the Plan Administrator. (c) If the Plan Administrator retains at the Plan's expense a private investigator or other person or service to assist in locating a missing person, all costs incurred for such services shall be paid by the Plan but charged to the Benefit to which the missing person was entitled (which shall be reduced by the amount of the costs incurred), except as the Plan Administrator may otherwise direct. (d) Payments to Participants or Beneficiaries may be postponed by the Plan Administrator until any anticipated taxes which must be paid or withheld or amounts to be paid under a domestic relations order have been paid in full or until it is determined that such charges will not be imposed. 9.2 Consolidation or Merger of Companies ------------------------------------ In the event of the consolidation or merger of the Employer with or into any other business entity, or the sale by the Employer of all of its assets, the successor may continue the Plan by adopting the same by resolution of its board of directors or agreement of its partners or proprietor. This Plan - 41 - shall not be construed as preventing the Employer from selling, transferring or otherwise disposing of all or any part of the business or assets of the Employer and the purchaser of all or any part of the Employer shall not be obligated to continue this Plan. If, within ninety days from the effective date of a consolidation, merger or sale of assets, the new corporation, partnership or proprietorship does not adopt the Plan, the Plan shall be terminated in accordance with Section 8.2. 9.3 Alienation ---------- The rights of a Participant, Spouse or Beneficiary under the Plan shall not be subject to any claim of any creditor nor to attachment or garnishment or other legal process by any creditor. A Participant or Beneficiary shall not have the right to alienate, anticipate, commute, pledge, encumber or assign any of the benefits or payments or proceeds which the individual may expect to receive, contingently or otherwise, under the Plan. The provisions of this Section shall not preclude any assignment or alienation expressly required under applicable law or other provisions of the Plan. - 42 - 9.4 Division of Benefits by Domestic Relations Orders ------------------------------------------------- (a) This Plan will follow the terms of any qualified domestic relations order issued with respect to a Participant. However, except as provided in subsection (e), the Plan will only follow orders which meet all of the requirements of subsection (b) or subsection (c). Subsection (c) establishes an optional standardized procedure. (b) A "qualified domestic relations order" is any judgment, decree or order, including the approval of a property settlement agreement, issued by a court of competent jurisdiction, provided that (i) the order relates to the provision of child support, alimony or marital property rights and is made pursuant to state domestic relations or community property laws; (ii) the order creates or recognizes the existence of an alternate payee's right to receive all or a portion of a Participant's Accrued Benefit; (iii) the order specifies the name and last unknown mailing address of the Participant and each alternate payee covered by the order; (iv) the order precisely specifies the amount or percentage of the Participant's Accrued Benefit to be paid to each alternate payee or the manner in which the amount or percentage is to be determined; - 43 - (v) the order specifies the number of payments or the period to which the order applies; (vi) the order specifically names this Plan as the plan to which the order applies; (vii) the order does not require this Plan to provide any type of benefits or form of benefits not otherwise provided under this Plan; (viii) the order does not require the payment of benefits to an alternate payee which are required to be paid to another alternate payee under another order previously determined by the Plan Administrator to be a qualified domestic relations order; and (ix) (if the order requires that payments to the alternate payee commence before they commence with respect to the Participant) the order (1) specifies that payments will not commence before the earlier of (a) the date on which the Participant attains age fifty or the first date on which the Participant could begin receiving benefits under the Plan if the Participant's Employment terminated, whichever is later, or (b) the date benefits first become payable to the Participant and (2) does not permit the alternate payee to elect a joint and survivor annuity covering the alternate payee and a spouse (other than the Participant). - 44 - A qualified domestic relations order may provide that a former Spouse of the Participant is to be treated as a surviving Spouse for purposes of the pre-retirement or post-retirement joint and survivor annuity provisions of this Plan. Subsection (d) sets forth the procedures under which the Plan Administrator shall determine whether a domestic relations order property qualifies. (c) The Plan Administrator at its discretion may furnish on request a standard form of qualified domestic relations order to a Participant or any other person. This order may provide for an immediate lump sum payment of the actuarial equivalent of the amount to which the alternate payee is determined to be entitled. If this form is used without substantial modification and is incorporated in a judgment, decree or order described in subsection (b)(i) which on its face appears to be valid, the Plan Administrator shall treat it as a qualified domestic relations order and shall pay benefits to the alternate payee in accordance with its terms. If this procedure is not followed, the alternate payee (1) must wait until the time described in subsection (b)(ix) before benefits which are not in pay status can become payable to the alternate payee and (2) cannot use any special forms of benefit payment authorized in the standard form of order. Any special benefit form provisions in standard domestic relations orders adopted by the Plan Administrator shall be authorized as benefit options under this Plan, but only - 45 - as to alternate payees for whom the standard order has been used. (d) The Plan Administrator need not treat any judgment, decree or order as a qualified domestic relations order unless it meets all of the requirements set forth in subsection (b) or (c) and is sufficiently precise and unambiguous so as to preclude any interpretative disputes. If the order meets these requirements, the Plan Administrator shall follow the terms of the order whether or not this Plan has been joined as a party to the litigation out of which the order arises. Upon receipt of a domestic relations order, the Plan Administrator shall notify the Participant and each alternate payee of (1) its receipt of the order and (2) its need to determine the qualified status of the order in accordance with subsection (b) or (c). An alternate payee may designate a representative to receive copies of future notices with respect to the qualified status of the order. To the extent an order calls for benefits to be paid to an alternate payee before the qualified nature of the order is determined, a separate account shall be established to hold the benefit payments affected by the order. This account shall be administered in accordance with the rules set forth in Section 206(d)(3)(H) of ERISA. (e) The Plan Administrator in its discretion may treat a property settlement agreement or stipulation which is not contained in a judgment, decree or order as a qualified domestic relations order if it meets - 46 - all of the other requirements of this Section. 9.5 Duty to Provide Data -------------------- (a) Every person with an interest in the Plan or claiming Benefits under the Plan shall furnish the Plan Administrator on a timely and accurate basis with such documents, evidence or information as it considers necessary or desirable for the purpose of administering the Plan. The Plan Administrator may postpone payment of Benefits until such information and such documents have been furnished. (b) Every person claiming a Benefit under this Plan shall give written notice to the Plan Administrator of his or her post office address and each change of post office address. Any communication, statement or notice addressed to such a person at his or her latest post office address as filed with the Plan Administrator will, on deposit in the United States mail with postage prepaid, be as binding upon such person for all purposes of the Plan as if it had been received, whether actually received or not. If a person fails to give notice of his or her correct address, the Plan Administrator, the Employer and Plan fiduciaries shall not be obliged to search for, or to ascertain, his or her whereabouts. - 47 - 9.6 Limitation on Rights of Employees --------------------------------- The Plan is strictly a voluntary undertaking on the part of the Employer and shall not constitute a contract between the Employer and any Participant, or consideration for, or an inducement or condition of, the employment of a Participant. Except as otherwise required by law or written contract, nothing contained in the Plan shall give any Participant the right to be retained in the service of the Employer or to interfere with or restrict the right of the Employer, which is hereby expressly reserved, to discharge or retire any Participant at any time, with or without cause. Except as otherwise required by law, inclusion under the Plan will not give any Participant any right or claim to any benefit hereunder except to the extent such right has specifically become fixed under the terms of the Plan. If any dispute arises under the Plan between a Participant and the Employer or any of its subsidiaries, such subsidiary or any other Participant shall not be necessary parties to the dispute and need not be named in any litigation or arbitration. This Plan shall not obligate the Employer to maintain a minimum net worth in order to insure payment of Benefits. The doctrine of substantial performance shall have no application to Employees, Participants or Beneficiaries. Each condition and provision, including numerical items, has been carefully - 48 - considered and constitutes the minimum limit on performance which will give rise to the applicable right. 9.7 Restrictions ------------ A Participant shall not at any time, either directly or indirectly, accept employment with, render service, assistance or advice to, or allow his or her name to be used by any competitor of the Employer unless approved by the Executive Committee of the Board of Directors. Determination by the Executive Committee of the Board of Directors that the Participant has engaged in any such activity shall be binding and conclusive on all parties, and in addition to all other rights and remedies which the Employer shall have, neither the Participant nor his or her Spouse nor any of his or her Beneficiaries shall be entitled to any payments hereunder. 9.8 Service of Process ------------------ The Secretary of Bergen Brunswig Corporation is hereby designated as agent for the service of legal process on the Plan. 9.9 Governing Law -------------- The Plan shall be interpreted, administered and enforced in accordance with ERISA, and the rights of Participants, former Participants, Spouses, Beneficiaries and all other persons shall be determined in accordance with this law. To the extent that state law is applicable, however, the laws of - 49 - the State of California shall apply, except as provided in Section 6.2 (relating to determination of heirs at law). 9.10 Plurals ------- Where the context so indicates, the singular shall include the plural and vice versa. 9.11 Titles ------ Titles are provided herein for convenience only and are not to serve as a basis for interpretation or construction of the Plan. 9.12 References ---------- Unless the context clearly indicates to the contrary, a reference to a Plan provision, statute, regulation or document shall be construed as referring to any subsequently enacted, adopted or executed counterpart. Executed at Orange, California, this ____ day of December, 1995. BERGEN BRUNSWIG CORPORATION By ____________________________ Executive Vice President, Chief Legal Officer & Secretary - 50 - EXHIBIT A --------- PLAN RULES ---------- As permitted by Sections 2.17 and 7.1 of the Plan, the Plan Administrator may adopt Plan Rules for the administration and interpretation of the Plan. These Rules may be changed from time to time. The Plan Rules shall consist of the Rules set forth in this document, in administrative forms adopted by the Plan Administrator or in written or oral policy decisions or interpretations made by the Plan Administrator. The Plan Administrator has broad powers to establish administrative procedures and to interpret the Plan by means of Plan Rules. Plan Rules adopted by the Plan Administrator may be set forth below, together with the date adopted. - 51 - EX-12.1 7 CALCULATION OF EARNINGS TO FIXED CHARGES
Exhibit 12.1 BERGEN BRUNSWIG CORPORATION CALCULATION OF RATIO OF EARNINGS TO FIXED CHARGES FOR THE YEARS ENDED SEPTEMBER 30, 1995 AND 1994, AND THE YEARS ENDED AUGUST 31, 1993, 1992 AND 1991 (In thousands, except ratios) Year Ended ---------------------------------------------------------------- September 30, August 31, ---------------------- ------------------------------------ 1995 1994 1993 1992 1991 ---------------------- ------------------------------------ Fixed Charges: Interest and amortization of debt issuance costs......... $ 32,800 $ 25,039 $ 27,085 $ 15,476 $ 14,528 Portion of rental expense representing interest.......... 5,661 5,299 5,495 4,935 5,281 --------- --------- --------- --------- ---------- Total fixed charges.................................. 38,461 30,338 32,580 20,411 19,809 Earnings: Earnings from continuing operations before taxes on income........................................ 109,490 98,112 48,260 83,470 89,626 --------- --------- --------- --------- ---------- Total earnings.................................... $ 147,951 $ 128,450 $ 80,840 $ 103,881 $ 109,435 ========= ========= ========= ========= ========== Ratio of earnings to fixed charges......................... 3.8 4.2 2.5 5.1 5.5 ========= ========= ========= ========= ==========
EX-23.1 8 INDEPENDENT AUDITORS' CONSENT EXHIBIT 23.1 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of Bergen Brunswig Corporation on Form S-3 of our report dated November 1, 1995, appearing in the Annual Report on Form 10-K of Bergen Brunswig Corporation for the fiscal year ended September 30, 1995, and to the reference to us under the heading "Experts" in the Prospectus, which is part of this Registration Statement. /s/ Deloitte & Touche LLP Costa Mesa, California February 1, 1996 EX-25.1 9 STATEMENT OF ELIGIBILITY OF TRUSTEE ON FORM T-1 EXHIBIT 25.1 CONFORMED SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ___________________________ FORM T-1 Statement of Eligibility and Qualification Under the Trust Indenture Act of 1939 of a Corporation Designated to Act as Trustee __________________________ CHEMICAL TRUST COMPANY OF CALIFORNIA (Exact name of trustee as specified in its charter) CALIFORNIA 94-2926573 (State of incorporation (I.R.S. employer if not a national bank) Identification No.) 50 California Street San Francisco, California 94111 (Address of principal executive offices) (Zip Code) __________________________ Bergen Brunswig Corporation (Exact name of Obligor as specified in its charter) New Jersey 22-1444512 (State or other jurisdiction of (I.R.S. employer incorporation or organization) Identification No.) 4000 Metropolitan Drive Orange, California 92668-3510 (Address of principal executive offices) (Zip Code) __________________________ ___% Debt Securities (Title of indenture securities) 1. General Information. Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. Superintendent of Banks of the State of California, 235 Montgomery Street, San Francisco, CA 94104-2980. Board of Governors of the Federal Reserve System, Washington, D.C. 20511. (b) Whether it is authorized to exercise corporate trust powers. Yes. 2. Affiliations with Obligor and Underwriters. If the Obligor or any Underwriter for the Obligor is an affiliate of the trustee, describe each such affiliation. No such affiliation with the Obligor or Underwriters. (Item 2 is at the date hereof based upon incomplete information but is believed to be correct and may be considered to be complete unless modified by an amendment to this Form T-1). 16. List of Exhibits. Exhibit 1. Articles of Incorporation of the Trustee as Now in Effect. Exhibit 2. Certificate of Authority of the Trustee to Commence Business. Exhibit 3. Authorization of the Trustee to Exercise Corporate Trust Powers (Contained in Exhibit 2.) Exhibit 4. Existing By-Laws of the Trustee. Exhibit 5. Not Applicable Exhibit 6. Consent of the Trustee. Exhibit 7. Report of Condition of the Trustee Exhibit 8. Not Applicable Exhibit 9. Not Applicable SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee, Chemical Trust Company of California, a corporation organized and existing under the laws of the State of California, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of San Francisco and State of California, on the 26th day of January, 1996 CHEMICAL TRUST COMPANY OF CALIFORNIA By s/JAMES NAGY ---------------------------------- Assistant Vice President Exhibit 1. Restated Articles of Incorporation of the Trustee as now in Effect. ================================================================================ RESTATED ARTICLES OF INCORPORATION ---------------------------------- OF -- MANUFACTURES HANOVER TRUST COMPANY OF CALIFORNIA ------------------------------------------------ Lynn E. Loveall and Denise M. Westermark hereby certify as follows. 1. They are the vice president and the assistant secretary, respectively, of Manufacturers Hanover Trust Company of California. 2. The Articles of Incorporation of Manufacturers Hanover Trust Company of California are amended and restated to read in full as follows: One: The name of the Corporation is: Manufacturers Hanover Trust Company of California Two: The purpose of the corporation is to engage in the commercial banking business and the trust business and any other lawful activities which are not, by applicable laws or regulations, prohibited to a commercial bank authorized to engage in the trust business; provided, however, that this corporation shall not engage in the business of making loans, investments or accepting deposits except for (a) deposits that are generated from trust funds not currently invested and that are properly secured to the extent required by law; (b) deposits representing funds received for a special use in the capacity of managing agent or custodian for an owner of , or investor in, real property, securities, or other personal property; or for such owner or investor as agent or custodian of funds held for investment or as escrow agent; or for an issuer of , or broker or dealer in securities, in ac capacity such as paying agent, dividend disbursing agent, or securities clearing agent; provided such deposits are not employed by or for the account of the customer in the manner of a general purpose checking account or interest-bearing account; or (c) making call loans to securities dealers or purchasing money market instruments such as certificates of deposit, commercial paper, government or municipal securities, and bankers acceptances; provided, however that such authorized loans and investments may not be used as a method of channeling funds to non banking affiliates of the corporation. Three: The total number of shares which the corporation is authorized to issue is one hundred (100) shares of $100 par value each. The shares of the corporation are subject to assessment by the corporation by order of the Superintendent of Banks of the State of California for the purpose of correcting an impairment of contributed capital in the manner and to the extent provided in Division 1 of the California Financial Code. Four: No amendment to these Articles of Incorporation shall become effective unless the certificate of amendment or other instrument setting forth such amendment is filed with the Secretary of State of the State of California with the approval of the Superintendent of Banks of the State of California endorsed thereon. Promptly after the amendment becomes effective, a copy of such certificate of amendment or other instrument certified by the Secretary of State shall be filed with the Superintendent of Banks. 3. The amendment and restatement set forth herein have been duly approved by the Board of Directors of Manufacturers Hanover Trust Company of California. 4. The amendment and restatement set forth herein have been duly approved by the required vote of shareholders in accordance with sections 902 and 903 of the California Corporation Code. The corporation has outstanding 100 shares. The number of shares voting in favor of the amendment exceeded 50%, satisfying the voting requirements necessary to pass the amendment. We further declare under penalty of perjury under the laws of the State of California that the matters set forth in this certificate are true and correct of our own knowledge Dated: 12/23/86 /s Lynn C. Loveall ---------------- ------------------------------ Lynn C. Loveall Vice President /s Denise M. Westermark ------------------------------ Denise M. Westermark Assistant Secretary Exhibit 2. Certificate of Authority of the Trustee to Commence Business. ================================================================================ No. 1476 State of California ------------------- State Banking Department ------------------------ Whereas, after due examination it appears that Chemical Trust Company of California having its principal place of business in the City and County of San Francisco, State of California, has complied with all the provisions of the Banking Law of the State of California, and with all other necessary requirements of law relating thereto; Now Therefore, I, the undersigned, Superintendent of Banks of the State of California, do certify that said bank is qualified and is hereby authorized to transact a trust banking business at 50 California Street in the City and County of San Francisco, State of California. In Testimony Whereof witness my hand and Seal this 29th day of April, 1984 at San Francisco, California. /s LOUIS CARTER Superintendent of Banks State of California (Seal of Superintendent of Banks of the State of California) Exhibit 3. Authorization of the Trustee to Exercise Corporate Trust Powers. ================================================================================ (Contained in Exhibit 2.) Exhibit 4. Existing By-laws of the Trustee. ================================================================================ BY-LAWS ------- OF -- CHEMICAL TRUST COMPANY OF CALIFORNIA ------------------------------------ (successor by merger to MANUFACTURERS HANOVER TRUST COMPANY OF CALIFORNIA) ARTICLE I --------- PRINCIPAL OFFICE ----------------- Section 1. The head office for the transaction of the business of the corporation is hereby fixed and located at San Francisco, California. The Board of Directors may change said head office from one location to another with the written approval of the Superintendent of Banks of the State of California. Section 2. The Board of Directors may establish and maintain one or more branch offices within the State of California when authorized by the Superintendent of Banks of the State of California. ARTICLE II ---------- Meetings of Shareholders ------------------------ Section 1. All meetings of the shareholders shall be held at any place within or without the State of California which may be designated either by the Board of Directors or by the written consent of all shareholders entitled to vote thereat and not present at the meeting given either before or after the meeting and filed with the secretary of the corporation. In the absence of any such designation, shareholders' meetings shall be held at the head office of the corporation. Section 2. The annual meeting of the shareholders of the corporation shall be held at such time in each year as may be designated from time to time by the Board of Directors. At such meeting, directors shall be elected and any other proper business may be transacted which is within the powers of the shareholders. Written notice of each annual meeting shall be given to each shareholder entitled to vote either personally or by first-class mail or other means of written communication (which includes, without limitation and wherever used in these By-Laws, telegraphic and facsimile communication), charges prepaid, addressed to each shareholder at the address appearing on the books of the corporation, or given by the shareholder to the corporation for the purpose of notice. If any notice or report addressed to the shareholder at the address of such shareholder appearing on the books of the corporation is returned to the corporation by the United States Postal Service marked to indicate that the United States Postal Service is unable to deliver the notice or report to the shareholder at such address, all future notices or reports shall be deemed to have been duly given without further mailing if the same shall be available for the shareholder upon written demand of the shareholder at the principal executive office of the corporation for a period of one (1) year from the date of the giving of the notice or report to all other shareholders. If no address of a shareholder appears on the books of the corporation or is given by the shareholder to the corporation, notice is duly given to him if sent by mail or other means of written communication addressed to the place where the principal executive office of the corporation is located or if published at least once in a newspaper or general circulation in the county in which said principal executive office is located. All such notices shall be given to each shareholder entitled thereto not less than ten (10) days nor more than sixty (60) days before each annual meeting. Any such notice shall be deemed to have been given at the time when delivered personally or deposited in the United States mail or delivered to a common carrier for transmission to the recipient or actually transmitted by the person giving the notice by electronic means to the recipient or sent by other means of written communication. Such notices shall state: (a) the place, date and hour of the meeting; (b) those matters which the Board, at the time of the mailing of the notice, intends to present for action by the shareholders; (c) if directors are to be elected, the names of nominees intended at the time of the notice to be presented by management for election; and (d) such other matters, if any, as may be expressly required by statute. Section 3. Special meetings of the shareholders for the purpose of taking any action permitted to be taken by the shareholders under the General Corporation Law, the California Banking Law and the Articles of Incorporation of this corporation, may be called by the chairman of the board or the president, or by any vice president, or by the Board of Directors, or by the holders of shares entitled to cast not less than ten percent (10%) of the votes at the meeting. Except in special cases where other express provision is made by statute, notice of such special meetings shall be given in the same manner and contain the same statements as required for annual meetings of shareholders. Notice of any special meeting shall also specify the general nature of the business to be transacted, and no other business may be transacted at such meeting. Section 4. The presence in person or by proxy of the holders of a majority of the shares entitled to vote at any meeting shall constitute a quorum for the transaction of business. The shareholders present at a duly called or held meeting at which a quorum is present may continue to transact business until adjournment, notwithstanding the withdrawal of enough shareholders to leave less than a quorum, if any action taken (other than adjournment) is approved by at least a majority of the shares required to constitute a quorum. In the absence of a quorum, any meeting of shareholders may be adjourned from time to time by the vote of a majority of the shares represented either in person or by proxy, but no other business may be transacted except as provided in the preceding sentence. Section 5. The affirmative vote of a majority of the shares represented and voting at a duly held meeting at which a quorum is present (which shares voting affirmatively shall constitute at least a majority of the required quorum) shall be the act of the shareholders except as may otherwise be provided by (i) Section 4 of this Article II, (ii) the cumulative voting provisions for this election of directors as stated in this Section below, and (iii) the California General Corporation Law, the California Banking Law or the Articles of Incorporation of this corporation. Subject to the requirements of the next sentence, every shareholder entitled to vote at any election for directors may cumulate his votes and give one candidate a number of votes equal to the number of directors to be elected multiplied by the number of votes to which his shares are normally entitled, or distribute his votes on the same principle among as many candidates as he shall think fit. No shareholder shall be entitled to cumulate votes unless such candidate or candidates' names have been placed in nomination prior to the voting and the shareholder has given notice at the meeting prior to the voting of the shareholder's intention to cumulate his votes. If any one shareholder has given such notice, all shareholders may cumulate their votes for candidates in nomination. The candidates receiving the highest number of votes of shares entitled to be voted for them, up to the number of directors to be elected, shall be elected. Section 6. Any action which, under any provision of the laws of the State of California, may be taken at a meeting of the shareholders, may be taken without a meeting if authorized by a writing signed by persons entitled to vote a majority of the shares of the corporation, and filed with the secretary of the corporation. Section 7. Every person entitled to vote or execute consents shall have the right to do so either in person or by one or more agents authorized by a written proxy executed by such person or his duly authorized agent and filed with the secretary. Proxies shall be valid and shall be executed in accordance with Section 705 of the General Corporation Law or successor section thereto. ARTICLE III ----------- Board of Directors ------------------ Section 1. Subject to the provisions of the California General Corporation Law, the California Banking Law and any limitations in the Articles of Incorporation and these By-Laws as to action to be authorized or approved by the shareholders, the business and affairs of the corporation shall be managed and all corporate powers shall be exercised by or under the direction of the Board of Directors. Section 2. The authorized number of directors shall not be less than six (6) nor more than eleven (11). The exact authorized number of directors shall be fixed from time to time, within the limits specified in this Section or in the Articles of Incorporation, by the Board of Directors, or by a By-law or amendment thereof duly adopted by the vote of a majority of the shares represented and voting at a duly held meeting at which a quorum is present (which shares voting affirmatively also constitute at least a majority of the required quorum), or by the written consent of the holders of a majority of the outstanding shares entitled to vote, until changed by a duly adopted amendment to the Articles of Incorporation or by an amendment to this Section adopted by approval of the holders of a majority of the outstanding shares. No amendment shall be adopted reducing the minimum authorized number of Directors to a number less than five (5). Section 3. The directors shall be elected at each annual meeting of shareholders, but if any such annual meeting is not held or the directors are not elected thereat, the directors may be elected at any special meeting of shareholders held for that purpose or by unanimous written consent of all shares entitled to vote for the election of directors. Each director, including a director elected to fill a vacancy, shall hold office until his successor is elected, except as otherwise provided by statute. Section 4. Vacancies in the Board of Directors, except for a vacancy created by the removal of a director, may be filled by a majority of the directors then in office, whether or not less than a quorum, or by a sole remaining director. Section 5. Each director upon taking office, after the corporation's receipt of a Certificate of Authority to transact business as a trust company from the Superintendent of Banks of the State of California, shall make an oath or affirmation as required by Section 682 of the California Financial Code or successor section thereto, and each such oath, subscribed by the director and certified by the officer before whom it is taken, shall be immediately filed with the Superintendent of Banks. ARTICLE IV ---------- Meetings of Directors --------------------- Section 1. The Board of Directors shall hold a regular or special meeting at least once each calendar month. Regular meetings of the Board of Directors shall be held at any time and place within the State of California that has been designated by resolution from time to time by the Board of Directors. In the absence of such designation, regular meetings shall be held at the head office of the corporation, except as otherwise provided in this Section 1. Immediately following each annual meeting of the shareholders there shall be a regular meeting of the Board of Directors of the corporation within the State of California at the place of said annual meeting or at such other place as shall have been designated by the Board of Directors for the purpose of organization, election of officers and the transaction of other business. Other regular meetings of the Board of Directors shall be held without call on such date and time as may be fixed by the Board of Directors; provided, however, that should any such day fall on a legal holiday, then said meeting shall be held at the same time on the next business day thereafter ensuing which is not a legal holiday. Notice of regular meetings of the directors is hereby dispensed with and no notice whatever of any such meeting need be given, provided that notice of any change in the time or place of regular meetings shall be given to all of the directors in the same manner as notice for special meetings of the Board of Directors. Section 2. Special meetings of the Board of Directors may be held at any place within or without the State of California which has been designated in the notice of the meeting, or, if not designated in the notice or if there is no notice, at the head office of the corporation. Special meetings of the Board of Directors for any purpose or purposes may be called at any time by the chairman of the Board or president or by any two directors. Notice of the time and place of special meetings shall be delivered personally or by telephone to each director, or sent by first-class mail or telegram or facsimile transmission, charges prepaid, addressed to him at his address as it appears upon the records of the corporation or, if it is not so shown on the records and is not readily ascertainable, at the place at which the meetings of the directors are regularly held. In case such notice is mailed, it shall be deposited in the United States mail at least four (4) days prior to the time of the holding of the meeting. In case such notice is telegraphed or sent by facsimile transmission, it shall be delivered to a common carrier for transmission to the director or actually transmitted by the person giving the notice by electronic means to the director at least twenty-four (24) hours prior to the time of the holding of the meeting. Any notice given personally or by telephone may be communicated to either the director or to a person at the office of the director whom the person giving the notice has reason to believe will promptly communicate it to the director. Such deposit in the mail, delivery to a common carrier, transmission by electronic means or delivery, personally or by telephone, as above provided, shall be due, legal and personal notice to such directors. The notice need not specify the place of the meeting if the meeting is to be held at the head office of the corporation, and need not specify the purpose of the meeting. Section 3. Presence of a majority of the authorized number of directors at a meeting of the Board of Directors constitutes a quorum for the transaction of business, except as hereinafter provided. Every act or decision done or made by a majority of the directors present at a meeting duly held at which a quorum is present shall be deemed the act of the Board of Directors, subject to the provisions of Section 310, 311 and 317 of the California General Corporation Law. Members of the Board may participate in a meeting through use of conference telephone or similar communications equipment, so long as all members participating in such meeting can hear one another. A meeting at which a quorum is initially present may continue to transact business notwithstanding the withdrawal of directors, provided that any action taken is approved by at least a majority of the required quorum for such meeting. A majority of the directors present, whether or not a quorum is present, may adjourn any meeting to another time and place. If the meeting is adjourned for more than twenty-four (24) hours, notice of any adjournment to another time or place shall be given prior to the time of the adjourned meeting to the directors who were not present at the time of the adjournment. Section 4. Notice of a meeting need not be given to any director who signs a waiver of notice or consent to holding the meeting or an approval of the minutes thereof, whether before or after the meeting, or who attends the meeting without protesting, prior thereto or at its commencement, the lack of notice to such director. All such waivers, consents and approvals shall be filed with the corporate records or made a part of the minutes of the meeting. Section 5. Any action required or permitted to be taken by the Board of Directors may be taken without a meeting if all members of the Board shall individually or collectively consent in writing to such action. Such written consent or consents shall be filed with the minutes of the proceedings of the Board. Such action by written consent shall have the same force and effect as a unanimous vote of such directors. Section 6. The provisions of this Article IV shall also apply, with necessary changes in points of detail, to committees of the Board of Directors, if any, and to actions by such committees (except that regular meetings of committees shall be established by the committees and except that special meetings of a committee may also be called at any time by any two members of the committee), unless otherwise provided by these By-Laws or by the resolution of the Board of Directors designating such committees. For such purpose, references to "the Board" or "the Board of Directors" shall be deemed to refer to each such committee and references to "directors" or "members of the Board" shall be deemed to refer to members of the committee. Committees of the Board of Directors may be designated, and shall be subject to the limitations on their authority, as provided in Section 311 of the General Corporation Law or any successor section thereto. The appointment of members or alternate members of a committee requires the vote of a majority of the authorized number of directors. Section 7. Directors and members of committees may receive such compensation, if any, for their services, and such reimbursement for expenses, as may be fixed or determined by resolution of the Board. ARTICLE V --------- Officers -------- Section 1. The officers of the corporation shall be a chairman of the board or a president or a general manager, or any combination of the foregoing, a secretary, and a treasurer, who shall also be the chief financial officer of the corporation. The corporation may also have, at the discretion of the Board of Directors, one or more executive vice presidents, senior vice presidents and vice presidents, one or more assistant secretaries, one or more assistant treasurers, and such other officers as may be designated from time to time by the Board of Directors. Any number of offices may be held by the same person. The officers shall be elected by the Board of Directors and shall hold office at the pleasure of such Board. Chairman of the Board --------------------- Section 2. The chairman of the board, if there be such officer, shall, if present, preside at all meetings of the Board of Directors and exercise and perform such other powers and duties as may be from time to time assigned to him by the Board of Directors or prescribed by the By-Laws. President --------- Section 3. Subject to such powers and duties, if any, as may be prescribed by these By-Laws or the Board of Directors for the chairman of the board, if there be such officer, the president shall be the chief executive officer of the corporation and shall, subject to the control of the Board of Directors, have general supervision, direction and control of the business and officers of the corporation. He shall preside at all meetings of the shareholders and, in the absence of the chairman of the board, or if there be none, at all meetings of the Board of Directors. He shall have all the powers and shall perform all of the duties which are ordinarily inherent in the office of the president, and he shall have such further powers and shall perform such further duties as may be prescribed for him by the Board of Directors. General Manager --------------- Section 4. In the absence or disability or refusal to act of the president, the general manager shall perform all of the duties of the president and when so acting shall have all the powers of and be subject to all the restrictions upon the president. Vice Presidents --------------- Section 5. In the absence or disability or refusal to act of the president or the general manager, the executive vice president designated by the president or the general manager or the Board of Directors, or, if there be none, the senior vice president so designated, or if there be none, the vice president so designated shall perform all of the duties of the president and when so acting shall have all the powers of and be subject to all the restrictions upon the president. The executive vice presidents, the senior vice presidents and the vice presidents shall have such other powers and perform such other duties as from time to time may be prescribed for them, respectively, by the Board of Directors or the By-Laws. Secretary --------- Section 6. The secretary shall keep or cause to be kept at the head office of the corporation or such other place as the Board of Directors may order, a book of minutes of all proceedings of the shareholders, the Board of Directors and committees of the Board, with the time and place of holding, whether regular or special, and if special how authorized, the notice thereof given, the names of those present at directors' and committee meetings, and the number of shares present or represented at shareholders' meetings. The secretary shall keep or cause to be kept at the head office a record of shareholders or a duplicate record of shareholders showing the names of the shareholders and their addresses, the number of shares and classes of shares held by each, the number and date of certificates issued for the same and the number and date of cancellation of every certificate surrendered for cancellation. The secretary or an assistant secretary or, if they are absent or unable or refuse to act, any other officer of the corporation, shall give or cause to be given notice of all the meetings of the shareholders, the Board of Directors and committees of the Board required by the By-Laws or by law to be given, and he shall keep the seal of the corporation, if any, in safe custody and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors or by the By-Laws. Section 7. It shall be the duty of the assistant secretaries to assist the secretary in the performance of his duties and generally to perform such other duties as may be delegated to them by the Board of Directors. Treasurer --------- Section 8. The treasurer shall be the chief financial officer of the corporation and shall keep and maintain, or cause to be kept and maintained, adequate and correct books and records of account of the corporation. He shall receive and deposit all moneys and other valuables belonging to the corporation in the name and to the credit of the corporation and shall disburse the same only in such manner as the Board of Directors or the appropriate officers of the corporation may from time to time determine, shall render to the president and the Board of Directors, whenever they request it, an account of all his transactions as treasurer and of the financial condition of the corporation, and shall perform such further duties as the Board of Directors may require. Section 9. It shall be the duty of the assistant treasurers to assist the treasurer in the performance of his duties and generally to perform such other duties as may be delegated to them by the Board of Directors. ARTICLE VI ---------- Annual Report ------------- Section 1. So long as the corporation shall have fewer than one hundred shareholders of record (determined as provided in Section 605 of the General Corporation Law of the State of California), the requirement of Section 1501(a) of said law that an annual report be sent to the shareholders is expressly waived. ARTICLE VII ----------- Amendments ---------- Section 1. New By-Laws may be adopted or these By-Laws may be amended or repealed by the affirmative vote or written consent of a majority of the outstanding shares entitled to vote, except as otherwise provided by law or by the Articles of Incorporation or these By-Laws. Section 2. Subject to the right of shareholders as provided in Section 1 of this Article to adopt, amend or repeal By-Laws, and except as otherwise provided by law or by the Articles of incorporation, By-Laws, or other than a by-law or amendment thereof changing the authorized maximum or minimum number of directors, may be adopted, amended or repealed by the Board of Directors. Section 3. Any amendment to these By-Laws shall become effective only when approved by the Superintendent of Banks of the State of California and when a copy thereof, certified by the secretary of the corporation, has been filed with the Superintendent of Banks. Exhibit 6. Consent of the Trustee. ================================================================================ Chemical Trust Company of California hereby consents, in accordance with the provisions of Section 321(b) of the Trust Indenture Act of 1939, that reports of examinations by Federal, State, Territorial and District authorities may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor. CHEMCIAL TRUST COMPANY OF CALIFORNIA BY: s/James Nagy ---------------------------------- James Nagy Assistant Vice President Exhibit 7. Report of Condition of the Trustee. ================================================================================ TRUST COMPANY Consolidated Report of Condition of Chemical Trust Company of California --------------------------------------------- (Legal Title) Located at San Francisco San Francisco CA 94111 ---------------------------------------------------------------------- (City) (County) (State) (Zip) as of close of business on December 31, 1995 Bank No. 1476 - -------------------------------------------------------------------------------- - --------------------------------------------------------------------------------
DOLLAR AMOUNT ASSETS IN THOUSANDS 1. Cash and due from banks 16,578 2. U.S. Treasury securities 4,518 3. Obligations of other U.S. Government agencies and corporations 4. Obligations of States and political subdivisions 5. Other securities (including $ corporate stock (a) Loans (b) Less: Reserve for possible loan losses (c) Loans (Net) 7. Bank Premises, furniture and fixtures and other assets representing bank premises (including $ -0- capital leases) 154 8. Real estate owned other than bank premises 9. Investments in subsidiaries not consolidated 10. Other assets (complete schedule on reverse) (including $________________ intangibles) 1,477 11. TOTAL ASSETS 22,727 ------- LIABILITIES 12. Liabilities For borrowed money 13. Mortgage indebtedness (including $___________ capital leases) 14. Other liabilities (complete on schedule on reverse 4,098 15. TOTAL LIABILITIES 4,098 ======= 16. Capital notes and debentures SHAREHOLDERS EQUITY 17. Preferred stock-- (Number shares outstanding _________________) Amount $ 18. Common stock-- (Number shares authorized 100 ) Amount $ (Number shares outstanding 100 ) Amount $ 10 19. Surplus Amount $ 9,990 20. TOTAL CONTRIBUTED CAPITAL 10,000 21. Retained earnings and other capital reserves 8,629 22. TOTAL SHAREHOLDERS EQUITY 18,629 23. TOTAL LIABILITIES AND CAPITAL ACCOUNTS 22,727 --------
MEMORANDA 1. Assets deposited with State Treasurer to qualify for exercise of fiduciary powers (market value) 605 - -------------------------------------------------------------------------------- The undersigned, Francis J. Farrell, VP, Manager & CFO ----------------------------------------- (Name and Title) and C. Scott Boone, Senior Vice President ----------------------------------------- (Name and Title) of the above named trust company, each declares, for himself alone and not for the other: I have a personal knowledge of the matters contained in this report (including the reverse side hereof), and I believe that each statement in said report is true. Each of the undersigned, for himself alone and not for the other, certifies under penalty of perjury that the foregoing is true and correct. Executed on 1/10/96 , at San Francisco , California ------------------ -------------------- (Date) (City) s/Francis J. Farrell s/C. Scott Boone --------------------------- -------------------------- (Signature) (Signature) SCHEDULE OF OTHER ASSETS Accounts Receivable-Trade 802 Accounts Receivable-Chemical 7 Accrued Interest 116 Deferred Taxes 396 Other 156 Total (same as Item 10) 1,477 ====== SCHEDULE OF OTHER LIABILITIES Accrued Income Taxes 2,284 Accrued Expenses & A/P 187 Accrued Inter company Exp/Pay 220 Accrued Pension & Benefits 1,407 Total (same as Item 14) 4,098 ===== -----END PRIVACY-ENHANCED MESSAGE-----