As filed with the Securities and
Exchange Commission on July 6, 2010
Registration
No. 333-
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Form S-3
REGISTRATION
STATEMENT
Under
THE SECURITIES ACT OF
1933
HILLENBRAND, INC.
(Exact name of registrant as
specified in its charter)
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Indiana
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26-1342272
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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One Batesville Boulevard,
Batesville, Indiana 47006; (812) 934-7500
(Address, including zip code,
and telephone number, including area code, of registrant’s
principal executive offices)
John R. Zerkle
Senior Vice President, General
Counsel and Secretary
Hillenbrand, Inc.
One Batesville
Boulevard
Batesville, Indiana
47006
(812) 934-7500
(Name, address, including zip
code, and telephone number, including area code, of agent for
service)
Copies to:
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James A. Aschleman
Janelle Blankenship
Baker & Daniels LLP
600 East 96th Street, Suite 600
Indianapolis, Indiana 46240
(317) 569-9600
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Craig E. Chapman
Robert Mandell
Sidley Austin LLP
787 Seventh Avenue
New York, New York 10019
(212) 839-5300
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Approximate date of commencement of proposed sale to the
public:
From time to time after the effective
date of the Registration Statement.
If the only securities being registered on this Form are to be
offered pursuant to dividend or interest reinvestment plans,
please check the following
box.
o
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
þ
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.
o
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.
o
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following
box.
þ
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to
register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box.
o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated file,
or a smaller reporting company. See the definitions of
“large accelerated filer,” “accelerated
filer” and “smaller reporting company” in
Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated
filer
þ
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Accelerated
filer
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Non-accelerated
filer
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Smaller reporting
company
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(Do not check if a smaller reporting
company)
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CALCULATION OF REGISTRATION
FEE
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Title of Each Class of
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Proposed Maximum
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Amount of
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Securities to be Registered
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Aggregate Offering Price(1)
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Registration Fee(2)
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Debt Securities
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Common Stock, without par value
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Preferred Stock
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Warrants
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Depositary Shares
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Units
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(1)
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This registration statement
registers an unspecified amount of securities of each identified
class of securities as may from time to time be issued at
indeterminate prices or upon conversion, exchange or exercise of
securities registered hereunder to the extent any such
securities are, by their terms, convertible into or exchangeable
or exercisable for such securities. Separate consideration may
or may not be received for securities that are issuable upon
exercise, conversion or exchange of other securities or that are
issued in units. The proposed maximum aggregate offering price
per class of securities will be determined from time to time by
the registrant in connection with the offering of the securities
hereunder.
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(2)
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In accordance with Rule 456(b)
and Rule 457(r), the registrant is deferring payment of all
of the registration fee.
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PROSPECTUS
Debt Securities
Common Stock
Preferred Stock
Warrants
Depositary Shares
Units
This prospectus is part of a registration statement that we
filed with the Securities and Exchange Commission under a
“shelf” registration or continuous offering process.
We may sell any combination of the securities described in this
prospectus in one or more offerings. We may offer the securities
separately or together, in separate series or classes and in
amounts, at prices and on terms described in one or more
supplements to this prospectus and other offering material.
We may offer and sell these securities to or through one or more
underwriters, dealers and agents, or directly to purchasers, on
a continuous or delayed basis.
This prospectus describes some of the general terms that may
apply to these securities. The specific terms of any securities
to be offered, and any other information relating to an
offering, will be set forth in a post-effective amendment to the
registration statement of which this prospectus is a part, in a
supplement to this prospectus or in other offering material
relating to the securities or may be set forth in one or more
documents incorporated by reference in this prospectus.
Our common stock is traded on the New York Stock Exchange under
the symbol “HI.”
You should read carefully this prospectus, the documents
incorporated by reference herein, the applicable prospectus
supplement and any other offering material before you invest.
This prospectus may be used to offer and sell securities only if
accompanied by a prospectus supplement.
Investing in our securities involves risks. See “Risk
factors” on page 4 of this prospectus and any similar
section contained in the applicable prospectus supplement
concerning factors you should consider before investing in our
securities and in our periodic reports filed with the Securities
and Exchange Commission.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
The date of this prospectus is July 6, 2010.
About
this prospectus
This prospectus provides you with a general description of the
securities that may be offered. Each time we offer or sell
securities, we will provide a prospectus supplement that will
contain specific information about the terms of that offering
and those securities. The prospectus supplement and any other
offering material may also add to, update or change the
information contained in this prospectus or in documents we have
incorporated by reference in this prospectus and, accordingly,
to the extent inconsistent, information in or incorporated by
reference in this prospectus is superseded by the information in
the prospectus supplement and any other offering material
related to those securities.
To understand the terms of our securities, you should carefully
read this document, the applicable prospectus supplement and any
other offering material related to those securities. Together,
they provide the specific terms of the securities we are
offering. You should also read the documents we have referred
you to under “Where you can find more information” and
“Incorporation of certain information by reference”
below for information on our company, the risks we face and our
financial statements. The registration statement and exhibits
can be read at the website of the Securities and Exchange
Commission (“SEC”) or at the SEC as described under
“Where you can find more information.”
You should rely only on the information provided in this
prospectus, in any prospectus supplement and in any other
offering material related to our securities, including the
information incorporated by reference herein and therein. We
have not authorized anyone to provide you with information
different from that contained or incorporated by reference in
this prospectus, any prospectus supplement or that other
offering material. We are offering to sell, and seeking offers
to buy, our securities only in jurisdictions where offers and
sales are permitted. You should not assume that the information
in this prospectus, any prospectus supplement, any other
offering material or information incorporated by reference
herein or therein is accurate at any date other than the date on
the cover page of those documents.
Forward-looking
statements
This prospectus, including the documents incorporated by
reference in this prospectus, contains or incorporates by
reference, and any prospectus supplement may contain or
incorporate by reference, certain estimates, predictions and
other “forward-looking statements” (as defined in the
Private Securities Litigation Reform Act of 1995, and within the
meaning of Section 27A of the Securities Act of 1933, as
amended, and Section 21E of the Securities Exchange Act of
1934, as amended (the “Exchange Act”)), including
statements regarding the anticipated effect of our acquisition
of K-Tron International, Inc. in April 2010 on our future
results. As the words imply, forward-looking statements are
statements about the future, as contrasted with historical
information. Our forward-looking statements are based on
assumptions and current expectations of future events that we
believe are reasonable, but by their very nature they are
subject to a wide range of risks. If our assumptions prove
inaccurate or unknown risks and uncertainties materialize,
actual results could vary materially from our expectations and
projections.
Words that could indicate we are making forward-looking
statements include the following:
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intend
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believe
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plan
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expect
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may
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goal
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would
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become
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pursue
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estimate
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will
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forecast
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continue
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could
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targeted
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encourage
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promise
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improve
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progress
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potential
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should
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This is not an exhaustive list, but is simply intended to give
you an idea of how we try to identify forward-looking
statements. The absence of any of these words, however, does not
mean that the statement is not forward-looking.
Here’s the key point: Forward-looking
statements are not guarantees of future performance, and our
actual results could differ materially from those set forth in
any forward-looking statements
. Any number of
factors — many of which are beyond our
control — could cause actual results to differ
materially from those described in the forward-looking
statements. These factors include, but are not limited to: the
occurrence of any event, change or other circumstance that could
disrupt current or future operations or pose potential
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difficulties in employee retention or otherwise affect financial
or operating results as a result of the acquisition of K-Tron
International, Inc.; the ability to recognize the benefits of
the acquisition of K-Tron International, Inc., including
potential synergies and cost savings or the failure of the
combined company to achieve its plans and objectives generally;
the increased leverage as a result of the transaction; and
legislative, regulatory and economic developments. Additional
factors that could cause actual results to differ materially
from those described in the forward-looking statements include
those identified in this prospectus, the applicable prospectus
supplement, as well as those detailed from time to time in our
filings with the SEC, including without limitation, our annual
report on
Form 10-K
for the year ended September 30, 2009, our subsequent
quarterly reports on
Form 10-Q,
our current report on
Form 8-K
filed on July 6, 2010 and the annual report on
Form 10-K
for the year ended January 2, 2010 of K-Tron International,
Inc. We assume no obligation to update or revise any
forward-looking information.
Where you
can find more information
We file annual, quarterly and current reports, proxy statements
and other information with the SEC. These SEC filings are
available to the public over the Internet at the SEC’s
website at
http://www.sec.gov
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You may also read and copy any document filed with the SEC by
visiting the SEC’s public reference room in
Washington, D.C. The SEC’s address in
Washington, D.C. is 100 F Street, N.E.,
Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330
for further information about the public reference room. You may
also inspect our SEC reports and other information at the New
York Stock Exchange, Inc., 20 Broad Street, New York, New
York 10005.
We have filed a registration statement on
Form S-3
with the SEC covering the securities that may be sold under this
prospectus. For further information concerning us and the
securities being offered, you should refer to the registration
statement and its exhibits. This prospectus summarizes material
provisions of contracts and other documents that we refer you
to. Because the prospectus may not contain all the information
that you may find important, you should review the full text of
these documents. We have included copies of these documents as
exhibits to the registration statement of which this prospectus
is a part.
Incorporation
of certain information by reference
The SEC allows us to “incorporate by reference” the
information we file with them, which means:
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incorporated documents are considered part of the prospectus;
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we can disclose important information to you by referring you to
those documents; and
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information that we file with the SEC will automatically update
and supersede the information in this prospectus and any
information that was previously incorporated by reference in
this prospectus.
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Our Exchange Act filing number is
001-33794.
The information incorporated by reference is considered to be
part of this prospectus and later information that we file with
the SEC will automatically update and supersede this
information. We incorporate by reference the following documents
and any future filings we make with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
(other than documents or information deemed to have been
furnished and not filed in accordance with the SEC rules) until
we have sold all of the securities to which this prospectus
relates or the offering is otherwise terminated:
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Our Annual Report on
Form 10-K
for the year ended September 30, 2009;
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The Annual Report on
Form 10-K
for the year ended January 2, 2010 for K-Tron
International, Inc.;
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Our Quarterly Reports on
Form 10-Q
for the quarters ended December 31, 2009 and March 31,
2010;
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Our Current Reports on
Form 8-K
filed January 11, 2010; March 1, 2010; March 17,
2010; April 5, 2010, as amended by the
Form 8-K/A
filed on each of May 18, 2010 and May 28, 2010; and
July 6, 2010;
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The definitive proxy statement for our 2010 annual meeting of
shareholders filed on January 5, 2010; and
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The description of our common stock contained in our
Registration Statement on
Form 10-12B,
filed under the Exchange Act (File No.
001-33794),
including any amendment or report filed for the purpose of
updating such description.
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To receive a free copy of any of the documents incorporated by
reference in this prospectus (other than exhibits, unless they
are specifically incorporated by reference in the document),
call or write us at the following address:
Hillenbrand, Inc.
One Batesville Boulevard
Batesville, Indiana 47006
Attention: Secretary
(812) 934-7500
Hillenbrand,
Inc.
Hillenbrand, Inc. (“Hillenbrand”) is the parent
holding company of its wholly-owned subsidiaries, Batesville
Services, Inc. (together with its subsidiaries,
“Batesville”) and K-Tron International, Inc. (together
with its subsidiaries, “K-Tron”). We acquired K-Tron
on April 1, 2010 for an aggregate cash purchase price of
$435.2 million. Adjusted for K-Tron debt and cash on hand
at April 1, 2010, the net purchase price of the transaction
was $376 million.
Batesville is the leader in the North American death care
products industry. It manufactures, distributes and sells
funeral service products to licensed funeral directors who
operate licensed funeral homes. Our Batesville branded products
consist primarily of burial caskets but also include cremation
caskets, containers and urns, selection room display fixturing
for funeral homes and other personalization and memorialization
products and services, including web-based applications and the
creation and hosting of websites for licensed funeral homes.
K-Tron is a recognized leader in the design, production,
marketing and servicing of material handling equipment and
systems. K-Tron serves a number of industrial markets through
two business lines. The Process Group focuses primarily on
designing, producing, marketing, selling and servicing feeding
and pneumatic conveying equipment, doing business under two main
brands: K-Tron
Feeders
®
and K-Tron
Premier
®
.
The Size Reduction Group concentrates on designing, producing,
marketing and selling size reduction equipment, conveying
systems and screening equipment, operating under three brands:
Pennsylvania
Crusher
®
,
Gundlach
®
and Jeffrey
Rader
®
.
Hillenbrand was formed as an Indiana corporation on
November 1, 2007 and became an independent publicly traded
company as the result of the separation of Hillenbrand
Industries, Inc. (now known as “Hill-Rom Holdings,
Inc.” or “Hill-Rom”) into two companies,
Hillenbrand and Hill-Rom, through a tax-free distribution of
Hillenbrand shares to Hill-Rom’s shareholders. This
distribution took place following the close of business on
March 31, 2008.
Unless the context requires otherwise or unless the applicable
prospectus supplement indicates otherwise, the terms
“we,” “us,” “our” and similar
terms refer to Hillenbrand, Inc. and its consolidated
subsidiaries.
Our principal executive offices are located at One Batesville
Boulevard, Batesville, Indiana 47006. Our telephone number is
(812) 934-7500.
Our Internet website address is
www.hillenbrandinc.com
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The information contained in, or that can be accessed through,
our website is not incorporated by reference into, or a part of,
this prospectus or any prospectus supplement.
If you want to find more information about us, please see the
sections entitled “Where you can find more
information” and “Incorporation of certain information
by reference” in this prospectus.
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Risk
factors
An investment in our securities involves a high degree of risk.
Prior to making a decision about purchasing any securities, you
should carefully consider and evaluate all of the information
included and incorporated by reference in this prospectus and
any accompanying prospectus supplement. You should also consider
the risks and uncertainties described in the applicable
prospectus supplement and the risks and uncertainties described
in the information incorporated by reference in this prospectus,
including the information included under “Risk
Factors” in our annual report on
Form 10-K
for the year ended September 30, 2009, our subsequent
quarterly reports on
Form 10-Q,
our current report on
Form 8-K
filed on July 6, 2010 and the annual report on
Form 10-K
for the year ended January 2, 2010 of K-Tron, all of which
are incorporated by reference herein in their entirety, as well
as any modification, replacement or update to these risks and
uncertainties that are reflected in any future filings we make
with the SEC as described under “Incorporation of certain
information by reference,” which will also be incorporated
by reference herein in their entirety. It is possible that our
business, financial condition, liquidity or results of
operations could be materially and adversely affected by any of
these risks.
These risks and uncertainties are not the only ones facing us.
Additional risks and uncertainties not presently known to us or
that we currently deem immaterial may also have a material
adverse effect on our business and operations. There may be
other risks that a prospective investor should consider that are
relevant to that investor’s own particular circumstances or
generally.
Use of
proceeds
Unless otherwise specified in the applicable prospectus
supplement, we expect to use the net proceeds from the sale of
the securities for general corporate purposes. General corporate
purposes may include but are not limited to working capital
needs, financing possible acquisitions, refinancing prior
acquisitions, repayment of debt, repurchase of shares of our
common stock, investments in our subsidiaries and financing
capital commitments. The net proceeds may be temporarily
invested or applied to repay short-term or revolving debt prior
to use.
Description
of debt securities
References to “Hillenbrand,” “us,”
“we” or “our” in this section mean
Hillenbrand, Inc., and do not include the consolidated
subsidiaries of Hillenbrand, Inc. In this section, references to
“holders” mean those who own debt securities
registered in their own names, on the books that we or the
applicable trustee maintain for this purpose, and not those who
own beneficial interests in debt securities registered in street
name or in debt securities issued in book-entry form through one
or more depositaries. Owners of beneficial interests in the debt
securities should read the section below entitled
“— Additional mechanics — Global
securities.”
The debt securities will not be secured by any of our property
or assets or the property or assets of our subsidiaries. Thus,
by owning a debt security, you are one of our unsecured
creditors.
The debt securities and, in the case of debt securities in
bearer form, any related interest coupons, will be issued under
our indenture described below and will rank equally with all of
our other unsecured and unsubordinated debt from time to time
outstanding. The indenture does not limit our ability to incur
additional unsecured indebtedness.
The debt securities are governed by a document called the
indenture. The indenture is a contract between Hillenbrand and
U.S. Bank National Association, which acts as trustee.
The trustee has two main roles:
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The trustee can enforce the rights of holders against us if we
default on our obligations under the terms of the indenture or
the debt securities. There are some limitations on the extent to
which the trustee acts on behalf of holders, described below
under “— Events of default — Remedies
if an event of default occurs.”
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The trustee performs administrative duties for us, such as
sending interest payments and notices to holders, and
transferring a holder’s debt securities to a new buyer if a
holder sells.
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The indenture and its associated documents contain the full
legal text of the matters described in this section. The
indenture and the debt securities are governed by New York law.
A copy of the indenture is an exhibit to our registration
statement. See “Where you can find more information”
above for information on how to obtain a copy.
General
We may issue as many distinct series of debt securities under
the indenture as we wish. In addition, we may offer debt
securities, together in the form of units with other debt
securities, preferred stock or common stock, as described below
under “Description of units.”
This section summarizes the material terms of the debt
securities that will be common to all series, although the
prospectus supplement which describes the terms of each series
of debt securities may also describe differences from the
material terms summarized here.
Because this section is a summary, it does not describe every
aspect of the debt securities. This summary is subject to and
qualified in its entirety by reference to all of the provisions
of the indenture, including definitions of certain terms used in
the indenture. In this summary, we describe the meaning of only
some of the more important terms. For your convenience, we also
include references in parentheses to certain sections of the
indenture. Whenever we refer to particular sections or defined
terms of the indenture in this prospectus or in the prospectus
supplement, such sections or defined terms are incorporated by
reference here or in the prospectus supplement. You must look to
the indenture for the most complete description of what we
describe in summary form in this prospectus.
This summary also is subject to and qualified by reference to
the description of the particular terms of your series described
in the prospectus supplement. Those terms may vary from the
terms described in this prospectus. The prospectus supplement
relating to each series of debt securities will be attached to
the front of this prospectus. There may also be a further
prospectus supplement, known as a pricing supplement, which
contains the precise terms of debt securities you are offered.
In addition, we may also incorporate additional information
concerning the debt securities by reference into the
registration statement of which this prospectus forms a part.
See “Where you can find more information.”
We may issue the debt securities as original issue discount
securities, which may be offered and sold at a substantial
discount below their stated principal amount.
(Section 301) The prospectus supplement relating to
the original issue discount securities will describe the
material U.S. federal income tax considerations and other
special considerations applicable to them. The debt securities
may also be issued as securities denominated in foreign
currencies or currency units, as described in more detail in the
prospectus supplement relating to any of the particular debt
securities.
The debt securities will be our direct, unsecured obligations.
The indenture does not limit the amount of debt securities that
we may issue. The indenture permits us to issue debt securities
from time to time, and debt securities issued under the
indenture will be issued as part of a series that have been
established by us under the indenture.
(Section 301) Unless a prospectus supplement relating
to debt securities states otherwise, the indenture and the terms
of the debt securities will not contain any covenants designed
to afford holders of the debt securities protection in a highly
leveraged or other transaction involving us that may adversely
affect holders of the debt securities.
In addition, the specific financial, legal and other terms
particular to a series of debt securities will be described in
the prospectus supplement (Section 301) and, if
applicable, a pricing supplement relating to the series. The
prospectus supplement relating to a series of debt securities
will describe the following terms of the series:
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the title of the series of the debt securities;
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any limit upon the aggregate principal amount of the debt
securities of such series;
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the person to whom interest on a debt security is payable, if
other than the holder on the regular record date;
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the date or dates on which the principal or installments of
principal (and premium, if any) of the series of debt securities
is or are payable and any rights to extend such date or dates;
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the rate or rates at which the series of debt securities shall
bear interest, if any, or the formula pursuant to which such
rate or rates shall be determined;
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the date or dates from which such interest shall accrue, the
interest payment dates on which such interest shall be payable,
the regular record dates for the interest payment dates and the
circumstances, if any, in which we may defer interest payments;
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the place or places where the principal of (and premium, if any)
and interest on the series of debt securities is payable and
where the debt securities may be presented for registration of
transfer or exchange;
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if applicable, the period or periods within which, the price or
prices at which and the terms and conditions upon which the
series of debt securities may be redeemed, in whole or in part;
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our obligation, if any, to redeem or purchase debt securities of
the series pursuant to any sinking fund or analogous provisions
and the period or periods within which, the price or prices at
which and the terms and conditions upon which securities of the
series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
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if other than denominations of $1,000 or any amount in excess
thereof which is an integral multiple of $1,000, the
denominations in which the series of debt securities shall be
issuable;
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the currency, currencies or currency units in which payment of
the principal of and any premium and interest on any of the
series of debt securities shall be payable if other than the
currency of the United States of America and the manner of
determining the U.S. dollar equivalent of the principal
amount thereof;
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if the principal of or any premium or interest on any debt
securities of the series is to be payable in one or more
currencies or currency units other than that or those in which
the debt securities are stated to be payable, the currency,
currencies or currency units in which payment of the principal
of and any premium and interest on debt securities of such
series as to which such election is made shall be payable, and
the periods within which and the terms and conditions upon which
such election is to be made;
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any other event or events of default or covenants applicable
with respect to the series of debt securities;
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if less than the principal amount thereof, the portion of the
principal amount of the debt securities of such series which
shall be payable upon declaration of acceleration of the
maturity thereof;
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whether the debt securities of such series shall be issued in
whole or in part in the form of one or more global securities
and, if so, the depositary or its nominee with respect to the
series of debt securities and the circumstances under which the
global security may be registered for transfer or exchange in
the name of a person other than the depositary or the nominee;
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the applicability of the provisions described under
“— Defeasance” below; and
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any other terms of the series.
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Overview
of remainder of this description
The remainder of this description summarizes:
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Additional mechanics
relevant to the debt
securities under normal circumstances, such as how holders
transfer ownership and where we make payments;
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Holders’ rights in several
Special
situations
, such as if we merge with another company or
if we want to change a term of the debt securities, and
restrictions on our ability, directly or through our
subsidiaries, to incur secured debt or engage in sale and
leaseback transactions;
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Our right to release ourselves from all or some of our
obligations under the debt securities and the indenture by a
process called
Defeasance
; and
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Holders’ rights if we
Default
or experience
other financial difficulties.
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Additional
mechanics
Form,
exchange and transfer
Unless we specify otherwise in the prospectus supplement, the
debt securities will be issued:
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only in fully registered form;
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without interest coupons; and
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in denominations that are even multiples of $1,000.
(Section 302)
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Holders may have their debt securities exchanged for more debt
securities of smaller denominations of not less than $1,000 or
exchanged for fewer debt securities of larger denominations, as
long as the total principal amount is not changed.
(Section 305)
Holders may exchange or transfer debt securities at the office
of the trustee. They may also replace lost, stolen or mutilated
debt securities at that office. The trustee acts as our agent
for registering debt securities in the names of holders and
transferring debt securities. We may change this appointment to
another entity or perform it ourselves. The entity performing
the role of maintaining the list of registered holders is called
the security registrar. It will also perform transfers. The
trustee may require an indemnity before replacing any debt
securities. (Sections 305, 306)
Holders will not be required to pay a service charge to transfer
or exchange debt securities, but holders may be required to pay
for any tax or other governmental charge associated with the
exchange or transfer. The transfer or exchange will only be made
if the security registrar is satisfied with your proof of
ownership. (Sections 305, 306)
If we designate additional transfer agents, they will be named
in the prospectus supplement. We may cancel the designation of
any particular transfer agent. We may also approve a change in
the office through which any transfer agent acts. However, no
designation or rescission will relieve us of our obligation to
maintain an office in each place of payment for securities of
any series. (Section 1002)
If the debt securities are redeemable, we may block the transfer
or exchange of debt securities during the period beginning
15 days before the day we mail the notice of redemption and
ending on the day of that mailing, in order to freeze the list
of holders to prepare the mailing. We may also refuse to
register transfers or exchanges of debt securities selected for
redemption, except that we will continue to permit transfers and
exchanges of the unredeemed portion of any debt security being
partially redeemed. (Section 305)
The rules for an exchange described above apply to an exchange
of debt securities for other debt securities of the same series
and kind. If a debt security is convertible, exercisable or
exchangeable into or for a different kind of security, such as
one that we have not issued, or for other property, the rules
governing that type of conversion, exercise or exchange will be
described in the prospectus supplement.
Global
securities
The debt securities of a series may be issued in whole or in
part in the form of one or more global securities that will be
deposited with or on behalf of a depositary identified in the
applicable prospectus supplement. Global securities will be
issued in registered form and may be in either temporary or
permanent form. The related prospectus supplement will describe
the specific terms of the depositary arrangement with
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respect to that series of debt securities. We anticipate that
the following provisions will apply to all depositary
arrangements.
Unless otherwise specified in an applicable prospectus
supplement, global securities to be deposited with or on behalf
of a depositary will be registered in the name of that
depositary or its nominee. Upon the issuance of a global
security, the depositary for that global security will credit
the respective principal amounts of the debt securities
represented by such global security to the participants that
have accounts with that depositary or its nominee. Ownership of
beneficial interests in those global securities will be limited
to participants in the depositary or persons that may hold
interests through these participants.
A participant’s ownership of beneficial interests in these
global securities will be shown on the records maintained by the
depositary or its nominee. The transfer of a participant’s
beneficial interest will only be effected through these records.
A person whose ownership of beneficial interests in these global
securities is held through a participant will be shown on, and
the transfer of that ownership interest within that participant
will be effected only through, records maintained by the
participant. The laws of some jurisdictions require that certain
purchasers of securities take physical delivery of such
securities in definitive form. Limits and laws of this nature
may impair your ability to transfer beneficial interests in a
global security.
Except as set forth below and in the indenture, owners of
beneficial interests in the global security will not be entitled
to receive debt securities of the series represented by that
global security in definitive form and will not be considered to
be the owners or holders of those debt securities under the
global security. Because the depositary can act only on behalf
of participants, which in turn act on behalf of indirect
participants, the ability of beneficial owners of interests in a
global security to pledge such interests to persons or entities
that do not participate in the depositary system, or otherwise
take actions in respect of such interests, may be affected by
the lack of a physical certificate evidencing such interests. No
beneficial owner of an interest in the global security will be
able to transfer that interest except in accordance with the
depositary’s applicable procedures, in addition to those
provided for under the indenture.
We will make payment of principal, premium, if any, and any
interest on global securities to the depositary or its nominee,
as the case may be, as the registered owner or the holder of the
global security. None of us, the trustee, any paying agent or
the securities registrar for those debt securities will have any
responsibility or liability for any aspect of the records
relating to, or payments made on account of, beneficial
ownership interests in a global security or for maintaining,
supervising or reviewing any records relating to those
beneficial ownership interests. (Sections 307, 308)
We expect that the depositary for a permanent global security,
upon receipt of any payment in respect of a permanent global
security, will immediately credit participants’ accounts
with payments in amounts proportionate to their respective
beneficial interests in the principal amount of that global
security as shown on the records of the depositary. We also
expect that payments by participants to owners of beneficial
interests in the global security held through those participants
will be governed by standing instructions and customary
practices, as is now the case with securities held for the
accounts of customers in bearer form or registered in
“street name,” and will be the responsibility of those
participants.
We may, at any time and in our sole discretion, determine not to
have any debt securities represented by one or more global
securities. In addition, the depositary may notify us that it is
unwilling or unable to continue as depositary for such debt
securities or it may at any time cease to be a clearing agency
registered under the Exchange Act. In any such event, or if an
event of default occurs with respect to the debt securities of
such series, we will issue debt securities in definitive form in
exchange for all of the global securities representing such debt
securities. (Section 305)
If set forth in the applicable prospectus supplement, an owner
of a beneficial interest in a global security may, on terms
acceptable to us and the depositary, receive debt securities of
that series in definitive form. In that event, an owner of a
beneficial interest in a global security will be entitled to
physical delivery in definitive form of debt securities of the
series represented by that global security equal in principal
amount to that beneficial interest and to have those debt
securities registered in its name. (Section 305)
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Registered
and bearer securities
Registered securities may be exchangeable for other debt
securities of the same series, registered in the same name, for
the same aggregate principal amount in authorized denominations
and will be transferable at any time or from time to time at the
office of the trustee. The holder will not pay a service charge
for any such exchange or transfer except for any tax or
governmental charge incidental thereto.
(Section 305) If permitted by applicable laws and
regulations, the prospectus supplement will describe the terms
upon which registered securities may be exchanged for bearer
securities of the series. If any bearer securities are issued,
any restrictions applicable to the offer, sale or delivery of
bearer securities and the terms upon which bearer securities may
be exchanged for registered securities of the same series will
be described in the prospectus supplement.
Payment
and paying agents
We will pay interest to the person listed in the trustee’s
records at the close of business on a particular day in advance
of each due date for interest, even if that person no longer
owns the debt security on the interest due date. Except as
otherwise may be stated in the prospectus supplement, the record
date will be the last day of the calendar month preceding an
interest due date if such interest due date is the fifteenth day
of the calendar month and will be the fifteenth day of the
calendar month preceding an interest due date if such interest
due date is the first day of the calendar month.
(Section 307) Holders buying and selling debt
securities must work out between them how to compensate for the
fact that we will pay all the interest for an interest period to
the one who is the registered holder on the regular record date.
The most common manner is to adjust the sale price of the
securities to pro-rate interest fairly between buyer and seller.
This pro-rated interest amount is called accrued interest.
We will pay interest, principal and any other money due on the
debt securities at the corporate trust office of the trustee.
That office is currently located at 10 W. Market
Street, Suite 1150, Indianapolis, IN 46204. Holders must
make arrangements to have their payments picked up at or wired
from that office. We may also choose to pay interest by mailing
checks.
BOOK-ENTRY AND OTHER INDIRECT HOLDERS SHOULD CONSULT THEIR
BANKS, BROKERS OR OTHER FINANCIAL INSTITUTIONS FOR INFORMATION
ON HOW THEY WILL RECEIVE PAYMENTS.
We may also arrange for additional payment offices and may
cancel or change these offices, including our use of the
trustee’s corporate trust office. These offices are called
paying agents. We may also choose to act as our own paying agent
or choose one of our subsidiaries to do so. We must notify the
trustee of any changes in the paying agents for any particular
series of debt securities. (Section 1002)
Notices
We and the trustee will send notices regarding the debt
securities only to holders, using their addresses as listed in
the trustee’s records. (Section 106) With respect
to who is a legal “holder” for this purpose, see
“— Global securities.”
Regardless of who acts as paying agent, all money paid by us to
a paying agent that remains unclaimed at the end of two years
after the amount is due to holders will be repaid to us. After
that two-year period, holders may look to us for payment and not
to the trustee or any other paying agent. (Section 1003)
Special
situations
Mergers
and similar events
We may not consolidate with or merge into any other person or
convey, transfer or lease our properties and assets
substantially as an entirety to any person unless:
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the person formed by such consolidation or into which we are
merged or the person which acquires by conveyance or transfer,
or which leases, our properties and assets substantially as an
entirety shall be a
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corporation, partnership or trust, shall be organized and
validly existing under the laws of the United States of America,
any State thereof or the District of Columbia and shall
expressly assume the due and punctual payment of the principal
of (and premium, if any) and interest on all the debt securities
and the performance or observance of every covenant of the
indenture to be performed or observed by us;
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after giving effect to the transaction, no event of default
under the indenture, and no event that, after notice or lapse of
time, or both, would become an event of default, will have
occurred and be continuing; and
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we have delivered certain certificates and opinions to the
trustee. (Section 801)
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If the conditions described above are satisfied with respect to
any series of debt securities, we will not need to obtain the
approval of the holders of those debt securities in order to
merge or consolidate or to sell our assets. Also, these
conditions will apply only if we wish to merge or consolidate
with another entity or sell substantially all of our assets to
another entity. We will not need to satisfy these conditions if
we enter into other types of transactions, including any
transaction in which we acquire the stock or assets of another
entity, any transaction that involves a change of control but in
which we do not merge or consolidate, any transaction in which
we sell less than substantially all of our assets and any merger
or consolidation in which we are the surviving corporation.
(Section 801) It is possible that these types of
transactions may result in a reduction in our credit rating, may
reduce our operating results or may impair our financial
condition. Holders of our debt securities, however, will have no
approval right with respect to any such transactions.
Modification
of indenture
We may modify or amend the indenture without the consent of the
holders of any of our outstanding debt securities for various
enumerated purposes, including but not limited to:
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to evidence the succession of another person to us and the
assumption by that successor of our covenants under the
indenture and the debt securities;
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to add to our covenants for the benefit of the holders of all or
any series of debt securities or to surrender any right or power
in the indenture conferred on us;
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to add any additional events of default;
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to secure the debt securities;
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to establish the form or terms of debt securities of any series
as permitted by the indenture;
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to supplement any of the provisions of the indenture to such
extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of debt securities under
the indenture, provided that any such action may not adversely
affect the interest of the holders of debt securities in any
material respect;
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to evidence and provide for the acceptance of appointment of a
successor trustee;
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to cure any ambiguity, to correct or supplement any provision in
the indenture which may be inconsistent with any other provision
of the indenture, or to make any other provisions with respect
to matters or questions arising under the indenture, provided
such action does not adversely affect the interests of the
holders of debt securities in any material respect; or
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to conform the terms of the indenture or the debt securities to
the description thereof contained in any prospectus or other
offering document or memorandum relating to the offer and sale
of those debt securities. (Section 901)
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In addition, we may generally modify or amend the indenture for
other purposes with the consent of the holders of not less than
a majority in aggregate principal amount of the debt securities
of each series affected
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by the modification or amendment. However, no such modification
or amendment may, without the consent of the holder of each
affected debt security:
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change the stated maturity of the principal of, or any
installment of principal of or interest on, that debt security;
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reduce the principal amount of that debt security or the rate of
interest of that debt security or any premium payable upon the
redemption of that debt security;
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change any place of payment where, or the coin or currency in
which, that debt security is payable;
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impair the right to institute suit for the enforcement of any
payment on that debt security on or after the due date for that
payment; or
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reduce the percentage in principal amount of the outstanding
debt securities of any series, the consent of whose holders is
required for any supplemental indenture, or the consent of whose
holders is required for any waiver of compliance with certain
provisions of the indenture or certain defaults and their
consequences under the indenture. (Section 902)
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Debt securities will not be considered outstanding, and
therefore not eligible to vote, if we have deposited or set
aside in trust for you money for their payment or redemption
including under circumstances where they have been fully
defeased as described below in “Defeasance — Full
defeasance.”
Restrictions
on secured debt
The indenture provides that neither we nor any of our
subsidiaries may incur or otherwise create any secured debt,
which is debt secured by a lien on any kind of property or
asset, whether real, personal or mixed, tangible or intangible
(we refer to such property or assets as “Property”)
owned by us or any subsidiary, or on any shares of stock or debt
of any subsidiary.
The restriction on creating secured debt, however, will not
apply if the outstanding debt securities are secured equally and
ratably with the new secured debt. (Section 1007)
The restriction on incurring or otherwise creating any secured
debt also will not apply to secured debt outstanding as of the
date of the indenture and to any of the following
(“Permitted Liens”):
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liens on any Property acquired, constructed or improved by us or
any subsidiary of ours after the date of the indenture, which
liens are created or assumed contemporaneously with such
acquisition, construction or improvement, or within
180 days before or after the completion thereof, and which
are created to secure or provide for the payment of all or any
part of the cost of such acquisition, construction or
improvement;
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liens on property, shares of capital stock or debt existing at
the time of the acquisition of such property, shares of capital
stock or debt, including liens on property, shares of capital
stock or indebtedness of a corporation existing at the time such
corporation becomes a subsidiary of ours;
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liens in favor of us or any subsidiary of ours;
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liens in favor of the United States of America or any State, or
in favor of any department, agency or instrumentality or
political division, or in favor of any other country or any
political subdivision of a foreign country, the purpose of which
is to secure partial, progress, advance or other payments or
other obligations pursuant to any contract or statute;
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liens imposed by law, for example mechanics’,
workmen’s, repairmen’s or other similar liens arising
in the ordinary course of business;
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pledges or deposits under workmen’s compensation or similar
legislation or in certain other circumstances;
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liens in connection with legal proceedings;
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liens for taxes or assessments;
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liens consisting of restrictions on the use of real property
that do not interfere materially with the property’s
use; or
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any extension, renewal or replacement, in whole or in part, of
any lien referred to in the previous bullet points.
(Section 1007)
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In addition, we or any subsidiary of ours may incur or otherwise
create secured debt without equally and ratably securing the
debt securities if, when such secured debt is incurred or
created, the total amount of all outstanding secured debt
(excluding Permitted Liens) plus Attributable Debt (as defined
below) relating to sale and leaseback transactions does not
exceed 10% of our Consolidated Net Tangible Assets.
(Section 1007)
“Consolidated Net Tangible Assets” means the aggregate
amount of assets (less applicable reserves and other properly
deductible items) after deducting therefrom (a) all current
liabilities (excluding any indebtedness for money borrowed
having a maturity of less than 12 months from the date of
our most recent consolidated balance sheet but which by its
terms is renewable or extendable beyond 12 months from such
date at the option of the borrower) and (b) all goodwill,
trade names, patents, unamortized debt discount and expense and
any other like intangibles, all as set forth on our most recent
consolidated balance sheet and computed in accordance with
generally accepted accounting principles.
Restrictions
on sale and leaseback transactions
The indenture provides that neither we nor any of our
subsidiaries may enter into any sale and leaseback transaction
involving certain significant manufacturing facilities of ours
(each of which is referred to in the indenture as a Principal
Property), unless within 180 days, we apply to the
retirement of our Funded Debt (debt that is not junior in right
of payment to the debt securities and that matures at or is
extendible or renewable at the option of the obligor to a date
more than 12 months after the date of the creation of such
debt) an amount not less than the greater of:
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the net proceeds of the sale of the Principal Property sold and
leased back pursuant to the arrangement, and
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the fair market value of the Principal Property so sold and
leased back.
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The amount applied to the retirement of Funded Debt shall be
reduced by (i) the principal amount of any debt securities
delivered within 120 days after the sale and leaseback
transaction to the trustee for retirement and cancellation, and
(ii) the principal amount of Funded Debt, other than debt
securities, voluntarily retired by us within 120 days after
the sale and leaseback transaction. Notwithstanding the
foregoing, no retirement of Funded Debt may be effected by
payment at maturity or pursuant to any mandatory prepayment
provision.
The restriction on sale and leaseback transactions does not
apply to the following:
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a sale and leaseback transaction between us and a subsidiary of
ours or between subsidiaries of ours, or that involves the
taking back of a lease for a period of less than three
years; or
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if, at the time of the sale and leaseback transaction, after
giving effect to the transaction, the total Attributable Debt of
all sale and leaseback transactions plus all outstanding secured
debt (excluding Permitted Liens) does not exceed 10% of our
Consolidated Net Tangible Assets. (Section 1008)
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“Attributable Debt” in respect of any sale and
leaseback transaction means, at the date of determination, the
present value (discounted at the rate of interest implicit in
the terms of the lease) of the obligation of the lessee for net
rental payments during the remaining term of the lease
(including any period for which such lease has been extended or
may, at the option of the lessor, be extended). “Net rental
payments” under any lease for any period means the sum of
the rental and other payments required to be paid in such period
by the lessee thereunder, excluding any amounts required to be
paid by such lessee (whether or not designated as rental or
additional rental) on account of maintenance and repairs,
insurance, taxes, assessments, water rates or similar charges
required to be paid by such lessee thereunder or any amounts
required to be paid by such
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lessee thereunder contingent upon the amount of sales,
maintenance and repairs, insurance, taxes, assessments, water
rates or similar charges.
Defeasance
The following discussion of full defeasance and discharge will
apply to any series of debt securities unless otherwise
indicated in the applicable prospectus supplement with respect
to the debt securities of a series.
Full defeasance.
If there is a change in
U.S. federal income tax law, as described below, we can
legally be released from any payment or other obligations on the
debt securities (called “full defeasance”) if we put
in place the following other arrangements for you to be repaid:
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We must deposit in trust for your benefit and the benefit of all
other direct holders of the debt securities of the same series a
combination of money and U.S. government or
U.S. government agency notes or bonds that will generate
enough cash to make interest, principal, any premium and any
other payments on the debt securities of that series on their
various due dates.
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There must be a change in current U.S. federal income tax
law or an Internal Revenue Service ruling that lets us make the
above deposit without causing you to be taxed on the debt
securities any differently than if we did not make the deposit
and instead repaid the debt securities ourselves when due. Under
current U.S. federal income tax law, the deposit and our
legal release from the debt securities would be treated as
though we took back your debt securities and gave you your share
of the cash and debt securities or bonds deposited in trust. In
that event, you could recognize gain or loss on the debt
securities you give back to us.
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We must deliver to the trustee a legal opinion of our counsel
confirming the tax law change described above.
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If we ever did accomplish full defeasance, as described above,
you would have to rely solely on the trust deposit for repayment
of the debt securities. You could not look to us for repayment
in the event of any shortfall. Conversely, the trust deposit
would most likely be protected from claims of our lenders and
other creditors if we ever become bankrupt or insolvent.
However, even if we make the deposit in trust and opinion
delivery arrangements discussed above, a number of our
obligations relating to the debt securities will remain. These
include our obligations:
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to register the transfer and exchange of debt securities;
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to replace mutilated, destroyed, lost or stolen debt securities;
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to maintain paying agencies; and
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to hold money for payment in trust.
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Covenant defeasance.
Under current
U.S. federal income tax law, we can make the same type of
deposit described above and be released from some of the
covenants in the debt securities. These covenants include those
described under “— Special situations —
Restrictions on secured debt” and “— Special
situations — Restrictions on sale and leaseback
transactions.” This is called “covenant
defeasance.” In that event, you would lose the protection
of those covenants but would gain the protection of having money
and securities set aside in trust to repay the debt securities.
In order to achieve covenant defeasance, we must do the
following:
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We must deposit in trust for your benefit and the benefit of all
other direct holders of the debt securities of the same series a
combination of money and U.S. government or
U.S. government agency notes or bonds that will generate
enough cash to make interest, principal, any premium and any
other payments on the debt securities of that series on their
various due dates.
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We must deliver to the trustee a legal opinion of our counsel
confirming that, under U.S. federal income tax law, we may
make the above deposit without causing you to be taxed on the
debt securities any differently than if we did not make the
deposit and instead repaid the debt securities ourselves when
due.
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If we accomplish covenant defeasance, you can still look to us
for repayment of the debt securities if there was a shortfall in
the trust deposit.
Satisfaction
and discharge
The indenture will cease to be of further effect and the
trustee, upon our demand and at our expense, will execute
appropriate instruments acknowledging the satisfaction and
discharge of the indenture upon compliance with certain
conditions, including:
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Our having paid all sums payable by us under the indenture, as
and when the same shall be due and payable;
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Our having delivered to the trustee for cancellation all debt
securities theretofore authenticated under the indenture; or
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All debt securities of any series outstanding under the
indenture not theretofore delivered to the trustee for
cancellation shall have become due and payable or are by their
terms to become due and payable within one year and we shall
have deposited with the trustee sufficient cash or
U.S. government or U.S. government agency notes or
bonds that will generate enough cash to pay, at maturity or upon
redemption, all such debt securities of any series outstanding
under the indenture.
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Events of
default
The indenture provides holders of debt securities with remedies
if we fail to perform specific obligations, such as making
payments on the debt securities. You should review these
provisions carefully in order to understand what constitutes an
event of default under the indenture.
Unless stated otherwise in the prospectus supplement, an event
of default with respect to any series of debt securities under
the indenture includes:
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a default for 30 days in the payment of any installment of
interest on any debt security of such series;
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a default in the payment of the principal of, or premium, if
any, on any debt security of such series when due and payable;
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a default in making a sinking fund payment, if any, on any debt
security of such series when due and payable;
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a default for 60 days after written notice in the
observance or performance of any other covenant in the indenture;
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an event of default under any indenture or instrument under
which we or any subsidiary of ours has outstanding at least
$75,000,000 aggregate principal amount of indebtedness for money
borrowed which results in the acceleration of that indebtedness
where the acceleration is not rescinded or annulled within
10 days after notice pursuant to the indenture has been
provided;
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certain events of bankruptcy, insolvency or reorganization
involving us or any significant subsidiary (as such term is
defined in
Regulation S-X
promulgated under the Exchange Act) of ours, or court
appointment of a receiver, liquidator or trustee for us or a
substantial part of our property or for a significant subsidiary
of ours or a substantial part of its property (a
“bankruptcy event”); or
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any other event of default provided in or pursuant to the
applicable resolution of our Board of Directors or supplemental
indenture under which such series of debt securities is issued.
(Section 501)
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An event of default under one series of debt securities does not
necessarily constitute an event of default under any other
series of debt securities. The trustee may withhold notice to
the holders of any series of debt securities of any default with
respect to such series, except with respect to the payment of
principal, premium or interest or the payment of any sinking
fund installment or analogous obligation, if it considers such
withholding of notice in the interest of such holders.
(Section 602)
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Remedies
if an event of default occurs
If an event of default with respect to any series of debt
securities has occurred and is continuing, other than on account
of the occurrence of a bankruptcy event involving us, the
trustee or the holders of not less than 25% in aggregate
principal amount of the debt securities of that series may
declare the principal of all the debt securities of such series
to be due and payable immediately. If such a declaration occurs,
the holders of a majority of the aggregate principal amount of
the outstanding debt securities of that series can, subject to
conditions, rescind the declaration. (Section 502) If
an event of default occurs as a result of a bankruptcy event
involving us, the debt securities of each series will
automatically become due and payable immediately.
The indenture contains a provision entitling the trustee to be
indemnified by the holders before proceeding to exercise any
right or power under the indenture at the request of any such
holders. (Section 603) The indenture provides that the
holders of a majority in aggregate principal amount of the
outstanding debt securities of any series may direct the time,
method and place of conducting any proceeding for any remedy
available to the trustee or exercising any trust or power
conferred upon the trustee, with respect to the debt securities
of such series. (Section 512) The right of a holder to
institute a proceeding with respect to the indenture is subject
to certain conditions precedent, including notice and indemnity
to the trustee. However, the holder has an absolute right to the
receipt of principal of, premium, if any, and interest, if any,
on the debt securities of any series on the respective stated
maturities, as defined in the indenture, and to institute suit
for the enforcement of these rights. (Sections 507, 508)
The holders of not less than a majority in aggregate principal
amount of the outstanding debt securities of any series may on
behalf of the holders of all the debt securities of such series
waive any past defaults, except that each holder of a debt
security affected by a default must consent to a waiver of:
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a default in payment of the principal of, or premium, if any, or
interest, if any, on any debt security of such series; and
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a default in respect of a covenant or provision of the indenture
that cannot be amended or modified without the consent of the
holder of each outstanding debt security affected.
(Section 513)
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We will furnish to the trustee annual statements as to the
fulfillment of our obligations under the indenture.
(Section 704)
Our
relationship with the trustee
Affiliates of U.S. Bank National Association, the current
trustee under the indenture, may provide banking and corporate
trust services to us and extend credit to us and many of our
subsidiaries worldwide. The trustee may also act as a depository
of our funds and hold shares of our common stock for the benefit
of its customers, including customers over whose accounts the
trustee has discretionary authority. If a bank or trust company
other than U.S. Bank National Association is to act as
trustee for a series of debt securities, the applicable
prospectus supplement will provide information concerning that
other trustee.
Description
of capital stock
Authorized
stock
Our authorized capital stock consists of 199,000,000 shares
of common stock, without par value, of which
62,267,609 shares were outstanding as of April 30,
2010, and 1,000,000 shares of preferred stock, of which
none were outstanding as of that date. The following summary
description of our capital stock is not complete and is
qualified in its entirety by reference to our restated and
amended articles of incorporation (our “Articles of
Incorporation”), and our amended and restated code of
by-laws (our “By-Laws”), a copy of each of which is
filed as an exhibit to the registration statement of which this
prospectus is a part.
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Common
stock
The holders of our common stock are entitled to one vote per
share. Directors are elected by a plurality of the votes cast by
shares entitled to vote. Other matters to be voted on by our
shareholders will be approved if the votes cast favoring the
matter exceed the votes cast opposing the matter at a meeting at
which a quorum is present, subject to any voting rights granted
to holders of any outstanding shares of preferred stock, except
as provided below. Approval of a merger, a share exchange, a
sale of all or substantially all of our property outside the
usual and regular course of business or a dissolution must be
approved by a majority of all votes entitled to be cast by the
holders of common stock, voting together as a single voting
group. Holders of our common stock will not have the right to
cumulate votes in elections of directors.
In the event of our liquidation, dissolution or winding up,
holders of our common stock will be entitled to their
proportionate share of any assets in accordance with each
holder’s holdings remaining after payment of liabilities
and any amounts due to other claimants, including the holders of
any outstanding shares of preferred stock. Holders of our common
stock have no preemptive rights and no right to convert or
exchange their common stock into any other securities. No
redemption or sinking fund provisions will apply to our common
stock. All outstanding shares of common stock are, and all
shares of common stock to be outstanding upon completion of the
distribution will be, fully paid and non-assessable.
Holders of common stock will share equally on a per share basis
in any dividend declared by our board of directors, subject to
any preferential rights of holders of any outstanding shares of
preferred stock.
Our common stock is traded on the New York Stock Exchange under
the symbol “HI.”
The transfer agent and registrar for our common stock is
Computershare Trust Company, N.A.
Preferred
stock
We currently have no shares of preferred stock outstanding. This
section is only a summary of the preferred stock that we may
offer. We urge you to read carefully our Articles of
Incorporation and the designation we will file in relation to an
issue of any particular series of preferred stock before you buy
any preferred stock. This section describes the general terms
and provisions of the preferred stock we may offer by this
prospectus. The applicable prospectus supplement will describe
the specific terms of the series of the preferred stock then
offered, and the terms and provisions described in this section
will apply only to the extent not superseded by the terms of the
applicable prospectus supplement.
Our board of directors may issue from time to time shares of
preferred stock in one or more series and with the relative
powers, rights and preferences and for the consideration our
board of directors may determine.
Our board of directors may, without further action of the
shareholders, determine and set forth in a designation, the
following for each series of preferred stock:
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the serial designation and the number of shares in that series;
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the dividend rate or rates, whether dividends shall be
cumulative and, if so, from what date, the payment date or dates
for dividends, and any participating or other special rights
with respect to dividends;
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any voting powers of the shares;
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whether the shares will be redeemable and, if so, the price or
prices at which, and the terms and conditions on which the
shares may be redeemed;
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the amount or amounts payable upon the shares in the event of
voluntary or involuntary liquidation, dissolution or winding up
of us prior to any payment or distribution of our assets to any
class or classes of our stock ranking junior to the preferred
stock;
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whether the shares will be entitled to the benefit of a sinking
or retirement fund and, if so entitled, the amount of the fund
and the manner of its application, including the price or prices
at which the shares may be redeemed or purchased through the
application of the fund;
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whether the shares will be convertible into, or exchangeable
for, shares of any other class or of any other series of the
same or any other class of our stock or the stock of another
issuer, and if so convertible or exchangeable, the conversion
price or prices, or the rates of exchange, and any adjustments
to the conversion price or rates of exchange at which the
conversion or exchange may be made, and any other terms and
conditions of the conversion or exchange; and
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any other preferences, privileges and powers, and relative,
participating, optional, or other special rights, and
qualifications, limitations or restrictions, as our board of
directors may deem advisable and as shall not be inconsistent
with the provisions of our Articles of Incorporation.
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Depending on the rights prescribed for a series of preferred
stock, the issuance of preferred stock could have an adverse
effect on the voting power of the holders of common stock and
could adversely affect holders of common stock by delaying or
preventing a change in control of us, making removal of our
present management more difficult or imposing restrictions upon
the payment of dividends and other distributions to the holders
of common stock.
The preferred stock, when issued, will be fully paid and
non-assessable. Unless the applicable prospectus supplement
provides otherwise, the preferred stock will have no preemptive
rights to subscribe for any additional securities which may be
issued by us in the future. The transfer agent and registrar for
the preferred stock will be specified in the applicable
prospectus supplement.
Description
of warrants
This section describes the general terms and provisions of the
warrants that we may offer pursuant to this prospectus. The
applicable prospectus supplement will describe the specific
terms of the warrants then offered, and the terms and provisions
described in this section will apply only to the extent not
superseded by the terms of the applicable prospectus supplement.
We may issue warrants for the purchase of common stock,
preferred stock or debt securities. Warrants may be issued alone
or together with common stock, preferred stock or debt
securities offered by any prospectus supplement and may be
attached to or separate from those securities. Each series of
warrants will be issued under warrant agreements between us and
a bank or trust company, as warrant agent, which will be
described in the applicable prospectus supplement. The warrant
agent will act solely as our agent in connection with the
warrants and will not act as an agent or trustee for any holders
or beneficial holders of warrants.
This section summarizes the general terms and provisions of the
forms of warrant agreements and warrant certificates. Because
this is only a summary, it does not contain all of the details
found in the full text of the warrant agreements and the warrant
certificates. We urge you to read the applicable form of warrant
agreement and the form of warrant certificate that we will file
with the SEC in relation to an issue of any warrants.
If warrants for the purchase of common stock, preferred stock or
debt securities are offered, the applicable prospectus
supplement will describe the terms of those warrants, including
the following if applicable:
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the price or prices, if any, at which the warrants will be
issued;
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the total number of shares or principal amount of debt
securities that can be purchased upon exercise of any warrant,
and the initial price at which the shares or debt securities, as
applicable, are purchasable upon exercise of the warrants;
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the designation and terms of the preferred stock or debt
securities that can be purchased upon exercise;
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the date on and after which the holder of the warrants can
transfer them separately from the related security;
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the date on which the right to exercise the warrants begins and
the date on which that right expires;
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call provisions, if any;
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whether the warrants represented by the warrant certificates or
debt securities that may be issued upon exercise of the warrants
will be issued in registered or bearer form;
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information relating to book-entry procedures, if any;
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the identity of the warrant agent;
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if necessary, U.S. federal income tax consequences; and
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any other terms of the warrants.
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Unless the applicable prospectus supplement provides otherwise,
warrants will be in registered form only. Until any warrants to
purchase preferred stock or common stock are exercised, holders
of the warrants will not have any rights of holders of the
underlying preferred stock or common stock, including any right
to receive dividends or to exercise any voting rights.
A holder of warrant certificates may:
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exchange them for new certificates of different denominations;
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present them for registration of transfer; and
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exercise them at the corporate trust office of the warrant agent
or any other office indicated in the applicable prospectus
supplement.
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Each holder of a warrant is entitled to purchase the number of
shares of common stock, shares of preferred stock or debt
securities at the exercise price described in the applicable
prospectus supplement. After the close of business on the day
when the right to exercise terminates, or a later date if we
extend the time for exercise, unexercised warrants will become
void.
Unless the applicable prospectus supplement provides otherwise,
a holder of warrants may exercise them by following the general
procedure outlined below:
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delivering to the warrant agent the payment required by the
applicable prospectus supplement to purchase the underlying
security;
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properly completing and signing the reverse side of the warrant
certificate representing the warrants; and
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delivering the warrant certificate representing the warrants to
the warrant agent within five business days of the warrant agent
receiving payment of the exercise price.
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If you comply with the procedures described above, your warrants
will be considered to have been exercised when the warrant agent
receives payment of the exercise price. After you have completed
those procedures, we will, as soon as practicable, issue and
deliver to you preferred stock, common stock or debt securities
that you purchased upon exercise. If you exercise fewer than all
of the warrants represented by a warrant certificate, a new
warrant certificate will be issued to you for the unexercised
amount of warrants. Holders of warrants will be required to pay
any tax or governmental charge that may be imposed in connection
with transferring the underlying securities in connection with
the exercise of the warrants.
Unless the applicable prospectus supplement provides otherwise,
the following describes generally the provisions relating to
amending and supplementing the warrant agreements.
We may amend or supplement a warrant agreement without the
consent of the holders of the applicable warrants if the changes
are not inconsistent with the provisions of the warrants and do
not materially adversely affect the interests of the holders of
the warrants. We and the warrant agent may also modify or amend
a warrant agreement and the terms of the warrants if a majority
of the then outstanding unexercised warrants affected by the
modification or amendment consent. However, no modification or
amendment that accelerates
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the expiration date, increases the exercise price, reduces the
majority consent requirement for any 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 by the modification or amendment.
The warrant certificate and the applicable prospectus supplement
will describe the events requiring adjustment to the warrant
exercise price or the number or principal amount of securities
issuable upon exercise of the warrant.
Description
of depositary shares
General
We may issue receipts for depositary shares, each of which will
represent a fractional interest of a share of a particular
series of preferred stock, as specified in the applicable
prospectus supplement. Shares of preferred stock of each series
represented by the depositary shares will be deposited under a
separate deposit agreement between us, the depositary named
therein and the holders of the depositary receipts. Subject to
the terms of the deposit agreement, each depositary receipt
owner will be entitled, in proportion to the fractional interest
of a share of a particular series of preferred stock represented
by the depositary shares evidenced by such depositary receipt,
to all the rights and preferences of the preferred stock
represented thereby.
Depositary receipts issued pursuant to the applicable deposit
agreement will evidence the depositary shares. Immediately
following our issuance and delivery of the preferred stock to
the depositary, we will cause the depositary to issue, on our
behalf, the depositary receipts. Upon request, we will provide
you with copies of the applicable form of deposit agreement and
depositary receipt.
Dividends
and other distributions
The depositary will distribute all cash dividends or other cash
distributions received in respect of the preferred stock to the
record holders of depositary receipts evidencing the related
depositary shares in proportion to the number of depositary
receipts owned by the holders.
If there is a distribution other than in cash, the depositary
will distribute property received by it to the record holders of
depositary receipts entitled thereto. If the depositary
determines that it is not feasible to make such distribution,
the depositary may, with our approval, sell the property and
distribute the net proceeds from such sale to the holders.
Withdrawal
of stock
Upon surrender of the depositary receipts at the corporate trust
office of the depositary, unless the related depositary shares
have previously been called for redemption, the holders thereof
will be entitled to delivery, to or upon such holders’
order, of the number of whole or fractional shares of the
preferred stock and any money or other property represented by
the depositary shares evidenced by the depositary receipts.
Holders of depositary receipts will be entitled to receive whole
or fractional shares of the related preferred stock on the basis
of the proportion of preferred stock represented by each
depositary share as specified in the applicable prospectus
supplement. Thereafter, holders of such shares of preferred
stock will not be entitled to receive depositary shares for the
preferred stock. If the depositary receipts delivered by the
holder evidence a number of depositary shares in excess of the
number of depositary shares representing the number of shares of
preferred stock to be withdrawn, the depositary will deliver to
the holder a new depositary receipt evidencing the excess number
of depositary shares.
Redemption
of depositary shares
Provided we shall have paid in full to the depositary the
redemption price of the preferred stock to be redeemed plus an
amount equal to any accrued and unpaid dividends thereon to the
redemption date, whenever we redeem shares of preferred stock
held by the depositary, the depositary will redeem as of the
same redemption date the number of depositary shares
representing shares of the preferred stock so redeemed. The
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redemption price per depositary share will be equal to the
redemption price and any other amounts per share payable with
respect to the preferred stock. If fewer than all the depositary
shares are to be redeemed, the depositary shares to be redeemed
will be selected as nearly as may be practicable without
creating fractional depositary shares, pro rata, or by any other
equitable method we determine.
From and after the date fixed for redemption, all dividends in
respect of the shares of preferred stock so called for
redemption will cease to accrue, the depositary shares called
for redemption will no longer be deemed to be outstanding and
all rights of the holders of the depositary receipts evidencing
the depositary shares so called for redemption will cease,
except the right to receive any moneys payable upon such
redemption and any money or other property to which the holders
of such depositary receipts were entitled to receive upon such
redemption upon surrender to the depositary of the depositary
receipts representing the depositary shares.
Voting of
the preferred stock
Upon receipt of notice of any meeting at which the holders of
the preferred stock are entitled to vote, the depositary will
mail the information contained in such notice of meeting to the
record holders of the depositary receipts evidencing the
depositary shares that represent such preferred stock. Each
record holder of depositary receipts evidencing depositary
shares on the record date, which will be the same date as the
record date for the preferred stock, will be entitled to
instruct the depositary as to the exercise of the voting rights
pertaining to the amount of preferred stock represented by such
holder’s depositary shares. The depositary will vote the
amount of preferred stock represented by such depositary shares
in accordance with such instructions, and we will agree to take
all reasonable action that may be deemed necessary by the
depositary in order to enable the depositary to do so. If the
depositary does not receive specific instructions from the
holders of depositary receipts evidencing such depositary
shares, it will abstain from voting the amount of preferred
stock represented by such depositary shares. The depositary
shall not be responsible for any failure to carry out any
instruction to vote, or for the manner or effect of any such
vote made, as long as any such action or non-action is in good
faith and does not result from the depositary’s negligence
or willful misconduct.
Liquidation
preference
Upon our liquidation, dissolution or winding up, whether
voluntary or involuntary, the holders of each depositary receipt
will be entitled to the fraction of the liquidation preference
accorded each share of preferred stock represented by the
depositary share evidenced by such depositary receipt, as set
forth in the applicable prospectus supplement.
Conversion
of preferred stock
The depositary shares are not convertible into our common stock
or any other of our securities or property. Nevertheless, if the
applicable prospectus supplement so specifies, the holders of
the depositary receipts may surrender their depositary receipts
to the depositary with written instructions to the depositary to
instruct us to cause conversion of the preferred stock
represented by the depositary shares evidenced by such
depositary receipts into whole shares of common stock, other
shares of our preferred stock or other shares of our capital
stock, and we have agreed that upon receipt of such instructions
and any amounts payable in respect thereof, we will cause the
conversion of the depositary shares utilizing the same
procedures as those provided for delivery of preferred stock to
effect such conversion. If the depositary shares evidenced by a
depositary receipt are to be converted in part only, the
depositary will issue a new depositary receipt for any
depositary shares not to be converted. No fractional shares of
common stock will be issued upon conversion, and if such
conversion will result in a fractional share being issued, we
will pay an amount in cash equal to the value of the fractional
interest based upon the closing price of the common stock on the
last business day prior to the conversion.
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Amendment
and termination of the deposit agreement
By agreement, we and the depositary at any time can amend the
form of depositary receipt and any provision of the deposit
agreement. However, any amendment that materially and adversely
alters the rights of the holders of depositary receipts or that
would be materially and adversely inconsistent with the rights
granted to holders of the related preferred stock will be
effective only if the existing holders of at least a majority of
the depositary shares have approved the amendment. No amendment
shall impair the right, subject to certain exceptions in the
deposit agreement, of any holder of depositary receipts to
surrender any depositary receipt with instructions to deliver to
the holder the related preferred stock and all money and other
property, if any, represented thereby, except in order to comply
with law. Every holder of an outstanding depositary receipt at
the time an amendment becomes effective shall be deemed, by
continuing to hold the depositary receipt, to consent and agree
to the amendment and to be bound by the deposit agreement as
amended thereby.
The deposit agreement will automatically terminate if
(a) all outstanding depositary shares shall have been
redeemed, (b) there shall have been a final distribution in
respect of the related preferred stock in connection with our
liquidation, dissolution or winding up and such distribution
shall have been distributed to the holders of depositary
receipts evidencing the depositary shares representing such
preferred stock or (c) each share of the related preferred
stock shall have been converted into our capital stock not so
represented by depositary shares.
Charges
of depositary
We will pay all transfer and other taxes and governmental
charges arising solely from the existence of the deposit
agreement. In addition, we will pay the fees and expenses of the
depositary in connection with the performance of its duties
under the deposit agreement. However, holders of depositary
receipts will pay certain other transfer and other taxes and
governmental charges. The holders will also pay the fees and
expenses of the depositary for any duties, outside of those
expressly provided for in the deposit agreement, the holders
request to be performed.
Resignation
and removal of depositary
The depositary may resign at any time by delivering to us notice
of its election to do so. We may at any time remove the
depositary. Any such resignation or removal will take effect
upon the appointment of a successor depositary. A successor
depositary must be appointed within 60 days after delivery
of the notice of resignation or removal and must be a bank or
trust company having its principal office in the United States
and having a combined capital and surplus of $50,000,000 or more.
Miscellaneous
The depositary will forward to holders of depositary receipts
any reports and communications from us which are received by the
depositary with respect to the related preferred stock.
We and the depositary will not be liable if either of us is
prevented from or delayed in, by law or any circumstances beyond
its control, performing its obligations under the deposit
agreement. Our obligations and the depositary’s obligations
under the deposit agreement will be limited to performing the
duties thereunder in good faith and without negligence, or in
the case of any action or inaction in the voting of preferred
stock represented by the depositary shares, gross negligence or
willful misconduct. If satisfactory indemnity is furnished, we
and the depositary will be obligated to prosecute or defend any
legal proceeding in respect of any depositary receipts,
depositary shares or shares of preferred stock represented
thereby. We and the depositary may rely on written advice of
counsel or accountants, or information provided by persons
presenting shares of preferred stock represented by depositary
receipts for deposit, holders of depositary receipts or other
persons believed in good faith to be competent to give such
information, and on documents believed in good faith to be
genuine and signed by a proper party.
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In the event the depositary shall receive conflicting claims,
requests or instructions from any holders of depositary
receipts, on the one hand, and us, on the other hand, the
depositary shall be entitled to act on our claims, requests or
instructions.
Description
of units
As specified in the applicable prospectus supplement, we may
issue units consisting of one or more warrants, debt securities,
shares of common or preferred stock or any combination of such
securities. The applicable prospectus supplement will describe:
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the terms of the units and of the warrants, debt securities,
common stock and preferred stock comprising the units, including
whether and under what circumstances the securities comprising
the units may be traded separately;
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a description of the terms of any unit agreement governing the
units; and
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a description of the provisions for the payment, settlement,
transfer or exchange of the units.
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Important
provisions of our governing documents and Indiana law
Classified
board of directors
Our Articles of Incorporation provide for our board of directors
to be composed of not fewer than seven directors and to be
divided into three classes of directors, as nearly equal in
number as possible, serving staggered terms. Approximately
one-third of our board will be elected each year. Under our
Articles of Incorporation, our directors can be removed only for
cause and only upon the affirmative vote of the holders of at
least two-thirds of the voting power of all shares of our
capital stock entitled to vote generally in the election of
directors, voting together as a single class. The provisions for
our classified board and certain other board of director matters
may be amended, altered or repealed only upon the affirmative
vote of the holders of at least two-thirds of the voting power
of all shares of our capital stock entitled to vote generally in
the election of directors, voting together as a single class.
Under
Section 23-1-33-6(c)
of the Indiana Business Corporation Law (the “IBCL”),
a corporation with a class of voting shares registered with the
SEC under Section 12 of the Exchange Act must have a
classified board unless the corporation adopted a by-law
expressly electing not to be governed by this provision by the
later of July 31, 2009 or 30 days after the
corporation’s voting shares are registered under
Section 12 of the Exchange Act. We adopted a by-law
electing not to be subject to this mandatory requirement on
July 15, 2009; however, under the IBCL, this election may
be rescinded by subsequent action of our board of directors.
The provision for a classified board in our Articles of
Incorporation could prevent a party that acquires control of a
majority of the outstanding voting stock from obtaining control
of our board until the second annual shareholders’ meeting
following the date the acquiror obtains the controlling stock
interest. The classified board provision could have the effect
of discouraging a potential acquiror from making a tender offer
for our shares or otherwise attempting to obtain control of us
and could increase the likelihood that our incumbent directors
will retain their positions.
We believe that a classified board helps to assure the
continuity and stability of our board and our business
strategies and policies as determined by our board, because a
majority of the directors at any given time will have prior
experience on our board. The classified board provision also
helps to ensure that our board, if confronted with an
unsolicited proposal from a third party that has acquired a
block of our voting stock, will have sufficient time to review
the proposal and appropriate alternatives and to seek the best
available result for all shareholders.
After the initial term of each class, our directors will serve
three-year terms. At each annual meeting of shareholders, a
class of directors will be elected for a three-year term to
succeed the directors of the same class whose terms are then
expiring.
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Our Articles of Incorporation further provide that vacancies or
newly created directorships in our board may only be filled by
the vote of a majority of the directors then in office, and any
director so chosen will hold office until the next annual
meeting of shareholders.
At any annual or special meeting of directors, our By-Laws
require the presence of a majority of the duly elected and
qualified members then occupying office as a quorum. However,
our Articles of Incorporation provide for a quorum of one-third
of such members unless the By-Laws otherwise specify.
Shareholder
action; special meetings
Our Articles of Incorporation provide that shareholder action
required or permitted to be taken at any meeting of the
shareholders may be taken without a meeting if a written consent
setting forth the action so taken is signed by all the holders
of our issued and outstanding capital stock entitled to vote
thereon. Our By-Laws provide that special meetings of the
shareholders can only be called by our board of directors, our
president or shareholders holding not less than one-fourth of
the outstanding shares of our common stock.
Quorum at
shareholder meetings
The holders of a majority of the shares entitled to vote at any
meeting of the shareholders, present in person or by proxy,
shall constitute a quorum at all shareholder meetings.
Shareholder
proposals
At any meeting of shareholders, only business that is properly
brought before the meeting will be conducted. To be properly
brought before a meeting of shareholders, business must be
specified in the notice of the meeting, brought before the
meeting by or at the direction of our board of directors, our
chairman of the board or our chief executive officer or properly
brought before the meeting by a shareholder.
For business to be properly brought before an annual meeting by
a shareholder, the shareholder must have given timely notice
thereof in writing to our secretary at our principal place of
business. To be timely, a shareholder’s notice must be
delivered to or mailed and received by our secretary not later
than 100 days prior to the anniversary of the date of the
immediately preceding annual meeting which was specified in the
initial formal notice of such meeting (but if the date of the
forthcoming annual meeting is more than 30 days after such
anniversary date, such written notice will also be timely if
received by our secretary by the later of 100 days prior to
the forthcoming meeting date and the close of business
10 days following the date on which we first make public
disclosure of the meeting date).
A shareholder’s notice must set forth, as to each matter
the shareholder proposes to bring before the meeting:
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a brief description of the business desired to be brought before
the meeting;
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the name and address of the shareholder proposing such business;
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the class and number of shares that are owned beneficially by
the shareholder proposing such business; and
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any interest of the shareholder in such business.
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Similarly, at a special meeting of shareholders, only such
business as is properly brought before the meeting will be
conducted or considered. To be properly brought before a special
meeting, business must be specified in the notice of the meeting
(or any supplement to that notice) or brought before the meeting
by or at the direction of our board of directors, our chairman
of the board or our chief executive officer.
Nomination
of candidates for election to our board
Our By-Laws provide that nominations of persons for election to
our board of directors may be made at any meeting of
shareholders by or at the direction of the board of directors or
by any shareholder entitled to vote for the election of members
of the board of directors at the meeting. For nominations to be
made by a
23
shareholder, the shareholder must have given timely notice
thereof in writing to our secretary at our principal place of
business and any nominee must satisfy the qualifications
established by the board of directors from time to time as
contained in the proxy statement for our immediately preceding
annual meeting or posted on our website. To be timely, a
shareholder’s nomination must be delivered to or mailed and
received by the secretary not later than (i) in the case of
the annual meeting, 100 days prior to the anniversary of
the date of the immediately preceding annual meeting which was
specified in the initial formal notice of such meeting (but if
the date of the forthcoming annual meeting is more than
30 days after such anniversary date, such written notice
will also be timely if received by the secretary by the later of
100 days prior to the forthcoming meeting date and the
close of business 10 days following the date on which we
first make public disclosure of the meeting date) and
(ii) in the case of a special meeting, the close of
business on the tenth day following the date on which we first
make public disclosure of the meeting date.
The notice given by a shareholder must set forth:
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the name and address of the shareholder who intends to make the
nomination and of the person or persons to be nominated;
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a representation that the shareholder is a holder of record,
setting forth the shares so held, and intends to appear in
person or by proxy as a holder of record at the meeting to
nominate the person or persons specified in the notice;
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a description of all arrangements or understandings between such
shareholder and each nominee proposed by the shareholder and any
other person or persons (identifying such person or persons)
pursuant to which the nomination or nominations are to be made
by the shareholders;
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such other information regarding each nominee proposed by such
shareholder as would be required to be included in a proxy
statement filed pursuant to the proxy rules of the SEC;
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the consent in writing of each nominee to serve as a director if
so elected; and
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a description of the qualifications of such nominee to serve as
a director.
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Amendment
of By-Laws
Our By-Laws may be amended, altered or repealed only by our
board of directors by affirmative vote of a majority of the
directors who would constitute a full board at the time of such
action.
Amendment
of the Articles of Incorporation
Except as otherwise specified above, any proposal to amend,
alter, change or repeal any provision of our Articles of
Incorporation, except as may be provided in the terms of any
preferred stock, requires approval by our board of directors and
our shareholders. In general, such a proposal would be approved
by our shareholders if the votes cast favoring the proposal
exceed the votes cast opposing the proposal at a meeting at
which a quorum is present.
Certain
provisions of the Indiana Business Corporation Law
As an Indiana corporation, we are governed by the IBCL. Under
specified circumstances, the following provisions of the IBCL
may delay, prevent or make more difficult unsolicited
acquisitions or changes of control of us. These provisions also
may have the effect of preventing changes in our management. It
is possible that these provisions could make it more difficult
to accomplish transactions which shareholders may otherwise deem
to be in their best interest.
Control share acquisitions.
Under
Chapter 42 of the IBCL, an acquiring person or group who
makes a “control share acquisition” in an
“issuing public corporation” may not exercise voting
rights on any “control shares” unless these voting
rights are conferred by a majority vote of the disinterested
shareholders of the issuing public corporation at a special
meeting of those shareholders held upon the request and at the
expense of the acquiring person. If control shares acquired in a
control share acquisition are accorded full voting rights
24
and the acquiring person has acquired control shares with a
majority or more of all voting power, all shareholders of the
issuing public corporation have dissenters’ rights to
receive the fair value of their shares pursuant to
Chapter 44 of the IBCL.
Under the IBCL, “control shares” means shares acquired
by a person that, when added to all other shares of the issuing
public corporation owned by that person or in respect to which
that person may exercise or direct the exercise of voting power,
would otherwise entitle that person to exercise voting power of
the issuing public corporation in the election of directors
within any of the following ranges:
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one-fifth or more but less than one-third;
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one-third or more but less than a majority; or
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a majority or more.
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“Control share acquisition” means, subject to
specified exceptions, the acquisition, directly or indirectly,
by any person of ownership of, or the power to direct the
exercise of voting power with respect to, issued and outstanding
control shares. For the purposes of determining whether an
acquisition constitutes a control share acquisition, shares
acquired within 90 days or under a plan to make a control
share acquisition are considered to have been acquired in the
same acquisition. “Issuing public corporation” means a
corporation which has (i) 100 or more shareholders,
(ii) its principal place of business or its principal
office in Indiana, or that owns or controls assets within
Indiana having a fair market value of greater than $1,000,000,
and (iii) (A) more than 10% of its shareholders resident in
Indiana, (B) more than 10% of its shares owned of record or
owned beneficially by Indiana residents, or
(C) 1,000 shareholders resident in Indiana.
The above provisions do not apply if, before a control share
acquisition is made, the corporation’s articles of
incorporation or by-laws, including a board adopted by-law,
provide that they do not apply. Our Articles of Incorporation
and By-Laws do not currently exclude us from the restrictions
imposed by the above provisions.
Certain business
combinations.
Chapter 43 of the IBCL
restricts the ability of a “resident domestic
corporation” to engage in any combinations with an
“interested shareholder” for five years after the date
the interested shareholder became such, unless the combination
or the purchase of shares by the interested shareholder on the
interested shareholder’s date of acquiring shares is
approved by the board of directors of the resident domestic
corporation before that date. If the combination was not
previously approved, the interested shareholder may effect a
combination after the five-year period only if that shareholder
receives approval from a majority of the disinterested shares or
the offer meets specified fair price criteria. For purposes of
the above provisions, “resident domestic corporation”
means an Indiana corporation that has 100 or more shareholders.
“Interested shareholder” means any person, other than
the resident domestic corporation or its subsidiaries, who is
(1) the beneficial owner, directly or indirectly, of 10% or
more of the voting power of the outstanding voting shares of the
resident domestic corporation or (2) an affiliate or
associate of the resident domestic corporation, which at any
time within the five-year period immediately before the date in
question, was the beneficial owner, directly or indirectly, of
10% or more of the voting power of the then outstanding shares
of the resident domestic corporation. The above provisions do
not apply to corporations that so elect in an amendment to their
articles of incorporation approved by a majority of the
disinterested shares. That amendment, however, cannot become
effective until 18 months after its passage and would apply
only to share acquisitions occurring after its effective date.
Our Articles of Incorporation do not exclude us from the
restrictions imposed by the above provisions.
Directors’ duties and
liability.
Under Chapter 35 of the IBCL,
directors are required to discharge their duties:
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in good faith;
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with the care an ordinarily prudent person in a like position
would exercise under similar circumstances; and
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in a manner the directors reasonably believe to be in the best
interests of the corporation.
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25
However, the IBCL also provides that a director is not liable
for any action taken as a director, or any failure to act,
regardless of the nature of the alleged breach of duty,
including alleged breaches of the duty of care, the duty of
loyalty and the duty of good faith, unless the director has
breached or failed to perform the duties of the director’s
office and the action or failure to act constitutes willful
misconduct or recklessness.
The exoneration from liability under the IBCL does not affect
the liability of directors for violations of the federal
securities laws.
Consideration of effects on other
constituents.
Chapter 35 of the IBCL
also provides that a board of directors, in discharging its
duties, may consider, in its discretion, both the long-term and
short-term best interests of the corporation, taking into
account, and weighing as the directors deem appropriate, the
effects of an action on the corporation’s shareholders,
employees, suppliers and customers and the communities in which
offices or other facilities of the corporation are located and
any other factors the directors consider pertinent. Directors
are not required to consider the effects of a proposed corporate
action on any particular corporate constituent group or interest
as a dominant or controlling factor. If a determination is made
with the approval of a majority of the disinterested directors
of the board, that determination is conclusively presumed to be
valid unless it can be demonstrated that the determination was
not made in good faith after reasonable investigation.
Chapter 35 specifically provides that specified judicial
decisions in Delaware and other jurisdictions, which might be
looked upon for guidance in interpreting Indiana law, including
decisions that propose a higher or different degree of scrutiny
in response to a proposed acquisition of the corporation, are
inconsistent with the proper application of the business
judgment rule under that section.
Plan of
distribution
We may sell the securities offered pursuant to this prospectus
in any of the following ways:
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directly to one or more purchasers;
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through underwriters, dealers or agents; or
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through a combination of any of these methods of sale.
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We will identify the specific plan of distribution, including
any underwriters, dealers, agents or direct purchasers and their
compensation, in a prospectus supplement.
Legal
matters
Unless otherwise specified in a prospectus supplement, the
validity of the securities offered hereby will be passed upon
for us by Baker & Daniels LLP, Indianapolis, Indiana,
and for any underwriters, dealers or agents by Sidley Austin
llp
, New York, New
York or otherwise by counsel named in the applicable prospectus
supplement.
Experts
The financial statements and management’s assessment of the
effectiveness of internal control over financial reporting
(which is included in Management’s Report on Internal
Control over Financial Reporting) for Hillenbrand, Inc.
incorporated in this prospectus by reference to the Annual
Report on
Form 10-K
for the year ended September 30, 2009 have been so
incorporated in reliance on the report of PricewaterhouseCoopers
LLP, an independent registered public accounting firm, given on
the authority of said firm as experts in auditing and accounting.
The consolidated financial statements, financial statement
schedule and management’s assessment of the effectiveness
of internal control over financial reporting included in the
Form 10-K
for the fiscal year ended January 2, 2010 of K-Tron
International, Inc. incorporated by reference in this prospectus
and elsewhere in the registration statement have been so
incorporated by reference in reliance upon the reports of Grant
Thornton LLP, independent registered public accountants, upon
the authority of said firm as experts in accounting and auditing
in giving said reports.
26
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
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Item. 14.
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Other
Expenses of Issuance and Distribution.
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The following table sets forth all expenses in connection with
the distribution of the securities being registered. All amounts
shown below are estimates:
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Securities and Exchange Commission registration fee
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$
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*
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Rating agency fees
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$
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**
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Accountants’ fees and expenses
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$
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**
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Legal fees and expenses
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$
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**
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Trustee’s fees and expenses
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$
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**
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Transfer agent’s fees and expenses
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$
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**
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Printing expenses
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$
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**
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Miscellaneous
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$
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**
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Total
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$
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**
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*
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To be deferred pursuant to Rule 456(b) and calculated in
connection with the offering of securities under this
registration statement pursuant to Rule 457(r).
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**
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These fees are calculated based on the securities offered and
the number of issuances and accordingly cannot be estimated at
this time. An estimate of the aggregate amount of these expenses
will be reflected in the applicable prospectus supplement.
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Item 15.
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Indemnification
of Directors and Officers.
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Chapter 37 of the IBCL authorizes every Indiana corporation
to indemnify its officers and directors under certain
circumstances against liability incurred in connection with
proceedings to which the officers or directors are made a party
by reason of their relationship to the corporation. Officers and
directors may be indemnified where they have acted in good
faith; in the case of official action, they reasonably believed
the conduct was in the corporation’s best interests and in
all other cases, they reasonably believed the action taken was
not against the best interests of the corporation; and in the
case of criminal proceedings, they had reasonable cause to
believe the action was lawful or there was no reasonable cause
to believe the action was unlawful. Chapter 37 also
requires every Indiana corporation to indemnify any of its
officers or directors (unless limited by the articles of
incorporation of the corporation) who were wholly successful, on
the merits or otherwise, in the defense of any such proceeding
against reasonable expenses incurred in connection with the
proceeding. A corporation may also, under certain circumstances,
pay for or reimburse the reasonable expenses incurred by an
officer or director who is a party to a proceeding in advance of
final disposition of the proceeding. Chapter 37 states
that the indemnification provided for therein is not exclusive
of any other rights to which a person may be entitled under the
articles of incorporation, by-laws or resolutions of the board
of directors or shareholders.
Our Articles of Incorporation and By-Laws generally obligate us
to indemnify our directors and officers to the full extent
permitted by the IBCL and to advance expenses incurred by our
directors and officers in the defense of certain claims.
We have also entered into indemnification agreements with our
directors and certain of our officers. Generally, these
indemnification agreements obligate us to indemnify each
director and each such officer to the full extent permitted by
the laws of the State of Indiana. Indemnification is required
against judgments, fines, amounts paid in settlement and
reasonable expenses, including attorneys’ fees, actually
and reasonably incurred in connection with the investigation,
defense or settlement of a claim, made against the director or
officer by reason of his or her service in such role for us.
Indemnification is not available in certain circumstances,
including, but not limited to, where a court determines that the
director or officer derived an
II-1
improper personal benefit, where a court determines that
indemnification is not lawful under any applicable statute or
public policy or in connection with any proceeding initiated by
the officer or director unless required by law, authorized by
the board of directors or related to enforcement of the
indemnification agreement.
We have obtained policies that insure our directors and officers
and those of our subsidiaries against certain liabilities they
may incur in their capacity as directors and officers. Under
these policies, the insurer, on our behalf, may also pay amounts
for which we have granted indemnification to the directors or
officers.
The list of exhibits is incorporated by reference to the
Exhibit Index on
page E-1.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the
“Calculation of Registration Fee” table in the
registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (1)(i), (1)(ii) and (1)(iii)
do not apply if the registration statement is on
Form S-3
or
Form F-3
and the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with
or furnished to the Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the
registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the registration
statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration
statement; and
(ii) Each prospectus required to be filed pursuant to Rule
424(b)(2), (b)(5), or (b)(7) as part of a registration statement
in reliance on Rule 430B relating to an offering made
pursuant to Rule 415(a)(1)(i), (vii) or (x), for the
purpose of providing the information required by
Section 10(a) of the Securities Act
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of 1933 shall be deemed to be part of and included in the
registration statement as of the earlier of the date it is first
used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus.
As provided in Rule 430B, for liability purposes of the
issuer and any person that is at that date an underwriter, such
date shall be deemed to be a new effective date of the
registration statement relating to the securities in the
registration statement to which that prospectus relates, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof. Provided, however, that
no statement made in a registration statement or prospectus that
is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or
made in any such document immediately prior to such effective
date.
(5) That, for the purpose of determining liability of the
registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities:
The undersigned registrant undertakes that in a primary offering
of securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method
used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a
seller to the purchaser and will be considered to offer or sell
such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant or used
or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned registrant or its securities provided by or on
behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the
offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes that, for
the purposes of determining any liability under the Securities
Act of 1933, each filing of its annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by
reference in this registration statement shall be deemed to be a
new registration statement 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) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act of 1933
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
(d) The undersigned registrant hereby undertakes to file an
application for the purpose of determining the eligibility of
the trustee to act under subsection (a) of Section 310
of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under
Section 305(b)(2) of the Trust Indenture Act.
II-3
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 Batesville, State of Indiana, on July 6, 2010.
hillenbrand, inc.
Kenneth A. Camp
President and Chief Executive Officer
POWER OF
ATTORNEY
Each person whose individual signature appears below constitutes
and appoints Kenneth A. Camp, Cynthia L. Lucchese and John R.
Zerkle, and each of them, with full power to act without the
other, his or her true and lawful attorneys-in-fact and agents,
with full and several power of substitution, for him or her and
in his or her name, place and stead, in any and all capacities,
to sign any or all amendments, including post-effective
amendments, to this registration statement and any registration
statement for the same offering covered by this registration
statement that is to be effective upon filing pursuant to
Rule 462(b) under the Securities Act of 1933, and to file
the same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange
Commission, granting unto such 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 to all intents and purposes as
they or he or she might or could do in person, hereby ratifying
and confirming all that such attorneys-in-fact and agents or any
of them, or their or his or her substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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|
/s/ Ray
J. Hillenbrand
Ray
J. Hillenbrand
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Chairman of the Board
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July 6, 2010
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|
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/s/ Kenneth
A. Camp
Kenneth
A. Camp
|
|
President, Chief Executive Officer and Director (Principal
Executive Officer)
|
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July 6, 2010
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/s/ Cynthia
L. Lucchese
Cynthia
L. Lucchese
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|
Senior Vice President and
Chief Financial Officer
(Principal Financial Officer)
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July 6, 2010
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/s/ Theodore
S. Haddad, Jr.
Theodore
S. Haddad, Jr.
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Vice President — Controller and
Chief Accounting Officer
(Principal Accounting Officer)
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July 6, 2010
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/s/ W
August Hillenbrand
W
August Hillenbrand
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Director
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July 6, 2010
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/s/ Eduardo
R. Menasce
Eduardo
R. Menasce
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Director
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July 6, 2010
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II-4
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Signature
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Title
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Date
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/s/ James
A. Henderson
James
A. Henderson
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Director
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July 6, 2010
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/s/ William
J. Cernugel
William
J. Cernugel
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Director
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July 6, 2010
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/s/ Mark
C. DeLuzio
Mark
C. DeLuzio
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Director
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July 6, 2010
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/s/ Thomas
H. Johnson
Thomas
H. Johnson
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Director
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July 6, 2010
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/s/ Stuart
A. Taylor, II
Stuart
A. Taylor, II
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Director
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July 6, 2010
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/s/ F.
Joseph Loughrey
F.
Joseph Loughrey
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Director
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July 6, 2010
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/s/ Neil
S. Novich
Neil
S. Novich
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Director
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July 6, 2010
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/s/ Edward
B. Cloues, II
Edward
B. Cloues, II
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Director
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July 6, 2010
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II-5
INDEX TO
EXHIBITS
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Exhibit
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No.
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Description of Exhibit
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1.1
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*
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Form of underwriting or purchase agreement for equity securities.
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1.2
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*
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Form of underwriting or purchase agreement for debt securities.
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4.1
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Restated and Amended Articles of Incorporation of Hillenbrand,
Inc., effective March 31, 2008 (incorporated by reference
to Exhibit 3.1 to Quarterly Report on
Form 10-Q
filed August 12, 2008).
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4.2
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Articles of Correction of the Restated and Amended Articles of
Incorporation of Hillenbrand, Inc., effective March 31,
2008 (incorporated by reference to Exhibit 3.2 to Quarterly
Report on
Form 10-Q
filed August 12, 2008).
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4.3
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Amended and Restated Code of By-Laws of Hillenbrand, Inc.
(incorporated by reference to Exhibit 3.2 to Current Report
on
Form 8-K
filed March 1, 2010).
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4.4
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*
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|
Specimen Common Stock certificate.
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|
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4.4
|
*
|
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Form of Designation for Preferred Stock.
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4.5
|
*
|
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Form of Preferred Stock Certificate.
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|
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4.6
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*
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Form of Warrant Agreement.
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|
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4.7
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*
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Form of Warrant Certificate (to be included in Exhibit 4.6).
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4.8
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*
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Form of Deposit Agreement.
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4.9
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*
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Form of Depositary Receipt (to be included in Exhibit 4.8).
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4.10
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*
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Form of Unit Agreement.
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4.11
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|
Form of Indenture by and between Hillenbrand, Inc., as issuer,
and U.S. Bank National Association, as trustee.
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4.12
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*
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Form of Debt Securities.
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5
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Opinion of Baker & Daniels LLP.
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12
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*
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Computation of Ratio of Earnings to Fixed Charges
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23.1
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|
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Consent of PricewaterhouseCoopers LLP, independent registered
public accounting firm.
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23.2
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Consent of Grant Thornton, LLP, independent registered public
accounting firm.
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23.3
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Consent of Baker & Daniels LLP (included in their
opinion filed as Exhibit 5).
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24
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Powers of Attorney (included on the signature page of this
Registration Statement)
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25
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Statement of Eligibility of U.S. Bank National Association on
Form T-1
for Debt Securities
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|
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*
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To be filed by post-effective amendment or incorporated by
reference from a Current Report on
Form 8-K.
|
Exhibit 4.11
HILLENBRAND, INC.,
Issuer
,
AND
U.S. BANK NATIONAL ASSOCIATION,
Trustee
Form of Indenture
Dated as of July , 2010
HILLENBRAND, INC.
Reconciliation and tie between Sections 310 to 318(a), inclusive, of the Trust Indenture Act
and this Indenture, dated as of July , 2010.
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Act Section
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Indenture Section
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Section 310(a)(1)
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609
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(a)(2)
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609
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(a)(3)
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N/A
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(a)(4)
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N/A
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(a)(5)
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609
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(b)
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608, 610
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Section 311
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613
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Section 312(a)
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701, 702(a)
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(b)
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702(b)
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(c)
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702(c)
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Section 313
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703
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Section 314(a)
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704
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(b)
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N/A
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(c)(1)
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102
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(c)(2)
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102
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(c)(3)
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N/A
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(d)
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N/A
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(e)
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102
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(f)
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N/A
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|
Section 315(a)
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|
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601
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(b)
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602
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(c)
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601
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(d)
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|
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601
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(e)
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514
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Section 316(a)
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|
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101
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(a)(1)(A)
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502, 512
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(a)(1)(B)
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513
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(a)(2)
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N/A
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|
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(b)
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|
|
508
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(c)
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|
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104
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|
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Section 317(a)(1)
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|
|
503
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|
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(a)(2)
|
|
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504
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(b)
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|
1003
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Section 318(a)
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|
|
107
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|
Note: This reconciliation and tie shall not, for any purpose, be deemed to be part of this
Indenture.
TABLE OF CONTENTS
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ARTICLE ONE
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DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
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SECTION 101.
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Definitions
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1
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SECTION 102.
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Compliance Certificates and Opinions
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8
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SECTION 103.
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Form of Documents Delivered to Trustee
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8
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SECTION 104.
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Acts of Holders
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9
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SECTION 105.
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Notices, Etc., to Trustee and Company
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|
10
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SECTION 106.
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|
Notice to Holders; Waiver
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10
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SECTION 107.
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Compliance with Trust Indenture Act
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10
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SECTION 108.
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Effect of Headings and Table of Contents
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11
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SECTION 109.
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Successors and Assigns
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11
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SECTION 110.
|
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Separability Clause
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11
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SECTION 111.
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Benefits of Indenture
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|
11
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SECTION 112.
|
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Governing Law
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11
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SECTION 113.
|
|
Legal Holidays
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11
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ARTICLE TWO
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SECURITY FORMS
|
|
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SECTION 201.
|
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Forms Generally
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11
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SECTION 202.
|
|
Form of Trustee’s Certificate of Authentication
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|
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12
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SECTION 203.
|
|
Form of Legend for Global Securities
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|
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12
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ARTICLE THREE
|
THE SECURITIES
|
|
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SECTION 301.
|
|
Amount Unlimited; Issuable in Series
|
|
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13
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SECTION 302.
|
|
Denominations
|
|
|
15
|
|
|
SECTION 303.
|
|
Execution, Authentication, Delivery and Dating
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|
|
15
|
|
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SECTION 304.
|
|
Temporary Securities
|
|
|
17
|
|
|
SECTION 305.
|
|
Registration, Registration of Transfer and Exchange
|
|
|
17
|
|
|
SECTION 306.
|
|
Mutilated, Destroyed, Lost and Stolen Securities
|
|
|
19
|
|
|
SECTION 307.
|
|
Payment of Interest; Interest Rights Preserved
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|
|
20
|
|
|
SECTION 308.
|
|
Persons Deemed Owners
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|
|
21
|
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SECTION 309.
|
|
Cancellation
|
|
|
21
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|
SECTION 310.
|
|
Computation of Interest
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|
|
21
|
|
|
SECTION 311.
|
|
Payment to be in Proper Currency
|
|
|
22
|
|
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|
|
|
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|
|
ARTICLE FOUR
|
SATISFACTION AND DISCHARGE
|
|
|
|
|
|
|
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|
|
SECTION 401.
|
|
Satisfaction and Discharge of Indenture
|
|
|
22
|
|
|
SECTION 402.
|
|
Application of Trust Money
|
|
|
23
|
|
|
SECTION 403.
|
|
Defeasance and Discharge of Indenture
|
|
|
23
|
|
1
|
|
|
|
|
|
|
|
ARTICLE FIVE
|
REMEDIES
|
|
|
|
|
|
|
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|
SECTION 501.
|
|
Events of Default
|
|
|
25
|
|
|
SECTION 502.
|
|
Acceleration of Maturity; Rescission and Annulment
|
|
|
27
|
|
|
SECTION 503.
|
|
Collection of Indebtedness and Suits for Enforcement by Trustee
|
|
|
28
|
|
|
SECTION 504.
|
|
Trustee May File Proofs of Claim
|
|
|
28
|
|
|
SECTION 505.
|
|
Trustee May Enforce Claims Without Possession of Securities
|
|
|
29
|
|
|
SECTION 506.
|
|
Application of Money Collected
|
|
|
29
|
|
|
SECTION 507.
|
|
Limitation on Suits
|
|
|
30
|
|
|
SECTION 508.
|
|
Unconditional Right of Holders to Receive Principal, Premium and Interest
|
|
|
30
|
|
|
SECTION 509.
|
|
Restoration of Rights and Remedies
|
|
|
30
|
|
|
SECTION 510.
|
|
Rights and Remedies Cumulative
|
|
|
31
|
|
|
SECTION 511.
|
|
Delay or Omission Not Waiver
|
|
|
31
|
|
|
SECTION 512.
|
|
Control by Holders
|
|
|
31
|
|
|
SECTION 513.
|
|
Waiver of Past Defaults
|
|
|
31
|
|
|
SECTION 514.
|
|
Undertaking for Costs
|
|
|
32
|
|
|
SECTION 515.
|
|
Waiver of Stay or Extension Laws
|
|
|
32
|
|
|
|
|
|
|
|
|
|
ARTICLE SIX
|
THE TRUSTEE
|
|
|
|
|
|
|
|
|
|
SECTION 601.
|
|
Certain Duties and Responsibilities
|
|
|
32
|
|
|
SECTION 602.
|
|
Notice of Defaults
|
|
|
33
|
|
|
SECTION 603.
|
|
Certain Rights of Trustee
|
|
|
33
|
|
|
SECTION 604.
|
|
Not Responsible for Recitals or Issuance of Securities
|
|
|
34
|
|
|
SECTION 605.
|
|
May Hold Securities
|
|
|
34
|
|
|
SECTION 606.
|
|
Money Held in Trust
|
|
|
35
|
|
|
SECTION 607.
|
|
Compensation and Reimbursement
|
|
|
35
|
|
|
SECTION 608.
|
|
Disqualification; Conflicting Interests
|
|
|
35
|
|
|
SECTION 609.
|
|
Corporate Trustee Required; Eligibility
|
|
|
35
|
|
|
SECTION 610.
|
|
Resignation and Removal; Appointment of Successor
|
|
|
36
|
|
|
SECTION 611.
|
|
Acceptance of Appointment by Successor
|
|
|
37
|
|
|
SECTION 612.
|
|
Merger, Conversion, Consolidation or Succession to Business
|
|
|
38
|
|
|
SECTION 613.
|
|
Preferential Collection of Claims Against Company
|
|
|
39
|
|
|
SECTION 614.
|
|
Appointment of Authenticating Agent
|
|
|
39
|
|
|
|
|
|
|
|
|
|
ARTICLE SEVEN
|
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
|
|
|
|
|
|
|
|
|
|
SECTION 701.
|
|
Company to Furnish Trustee Names and Addresses of Holders
|
|
|
40
|
|
|
SECTION 702.
|
|
Preservation of Information; Communications to Holders
|
|
|
40
|
|
|
SECTION 703.
|
|
Reports by Trustee
|
|
|
41
|
|
|
SECTION 704.
|
|
Reports by Company
|
|
|
41
|
|
|
|
|
|
|
|
|
|
ARTICLE EIGHT
|
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
|
|
|
|
|
|
|
|
|
|
SECTION 801.
|
|
Company May Consolidate Etc., Only on Certain Terms
|
|
|
42
|
|
|
SECTION 802.
|
|
Successor Substituted
|
|
|
42
|
|
2
|
|
|
|
|
|
|
|
ARTICLE NINE
|
SUPPLEMENTAL INDENTURES
|
|
|
|
|
|
|
|
|
|
SECTION 901.
|
|
Supplemental Indentures Without Consent of Holders
|
|
|
43
|
|
|
SECTION 902.
|
|
Supplemental Indentures with Consent of Holders
|
|
|
44
|
|
|
SECTION 903.
|
|
Execution of Supplemental Indentures
|
|
|
45
|
|
|
SECTION 904.
|
|
Effect of Supplemental Indentures
|
|
|
45
|
|
|
SECTION 905.
|
|
Conformity with Trust Indenture Act
|
|
|
46
|
|
|
SECTION 906.
|
|
Reference in Securities to Supplemental Indentures
|
|
|
46
|
|
|
SECTION 907.
|
|
Notice of Supplemental Indentures
|
|
|
46
|
|
|
|
|
|
|
|
|
|
ARTICLE TEN
|
COVENANTS
|
|
|
|
|
|
|
|
|
|
SECTION 1001.
|
|
Payment of Principal, Premium and Interest
|
|
|
46
|
|
|
SECTION 1002.
|
|
Maintenance of Office or Agency
|
|
|
46
|
|
|
SECTION 1003.
|
|
Money for Securities Payments to Be Held in Trust
|
|
|
47
|
|
|
SECTION 1004.
|
|
Existence
|
|
|
48
|
|
|
SECTION 1005.
|
|
Maintenance of Properties
|
|
|
48
|
|
|
SECTION 1006.
|
|
Payment of Taxes and Other Claims
|
|
|
48
|
|
|
SECTION 1007.
|
|
Restriction on Secured Debt
|
|
|
49
|
|
|
SECTION 1008.
|
|
Restriction on Sale and Leaseback Transactions
|
|
|
51
|
|
|
SECTION 1009.
|
|
Defeasance of Certain Obligations
|
|
|
51
|
|
|
SECTION 1010.
|
|
Waiver of Certain Covenants
|
|
|
52
|
|
|
|
|
|
|
|
|
|
ARTICLE ELEVEN
|
REDEMPTION OF SECURITIES
|
|
|
|
|
|
|
|
|
|
SECTION 1101.
|
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Applicability of Article
|
|
|
53
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SECTION 1102.
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Election to Redeem; Notice to Trustee
|
|
|
53
|
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SECTION 1103.
|
|
Selection by Trustee of Securities to Be Redeemed
|
|
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53
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SECTION 1104.
|
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Notice of Redemption
|
|
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54
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SECTION 1105.
|
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Deposit of Redemption Price
|
|
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54
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|
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SECTION 1106.
|
|
Securities Payable on Redemption Date
|
|
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55
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SECTION 1107.
|
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Securities Redeemed in Part
|
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55
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ARTICLE TWELVE
|
|
SINKING FUNDS
|
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SECTION 1201.
|
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Applicability of Article
|
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55
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SECTION 1202.
|
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Satisfaction of Sinking Fund Payments with Securities
|
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56
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SECTION 1203.
|
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Redemption of Securities for Sinking Fund
|
|
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56
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3
INDENTURE,
dated as of July , 2010, between HILLENBRAND, INC., a corporation duly organized
and existing under the laws of the State of Indiana (herein called the “
Company
”), having its
principal office at One Batesville Boulevard, Batesville, Indiana 47006, and U.S. BANK NATIONAL
ASSOCIATION, as Trustee (herein called the “
Trustee
”).
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture (this
“
Indenture
”) to provide for the issuance from time to time of its unsecured debentures, notes or
other evidences of indebtedness (herein called the “
Securities
”) to be issued in one or more series
as provided in this Indenture.
All things necessary to make this Indenture a valid agreement of the Company in accordance
with its terms have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders
thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them in this
Article and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust Indenture Act or by
Commission rule or regulation under the Trust Indenture Act, either directly or by reference
therein, have the meanings assigned to them therein;
(c) any gender used in this Indenture shall be deemed and construed to include
correlative words of the masculine, feminine or neuter gender;
(d) 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; and
1
(e) the words “herein”, “hereof” and “hereunder” and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or other
subdivision.
Certain terms, used principally in Article Six, are defined in that Article.
“
Act
”, when used with respect to any Holder, has the meaning specified in Section 104.
“
Affiliate
” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For the
purposes of this definition, “control”, when used with respect to any specified Person, means the
power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.
“
Attributable Debt
” in respect of any Sale and Leaseback Transaction means, at the date of
determination, the present value (discounted at the rate of interest implicit in the terms of the
lease) of the obligation of the lessee for net rental payments during the remaining term of the
lease (including any period for which such lease has been extended or may, at the option of the
lessor, be extended). “
Net rental payments
” under any lease for any period means the sum of the
rental and other payments required to be paid in such period by the lessee thereunder, excluding
any amounts required to be paid by such lessee (whether or not designated as rental or additional
rental) on account of maintenance and repairs, insurance, taxes, assessments, water rates or
similar charges required to be paid by such lessee thereunder or any amounts required to be paid by
such lessee thereunder contingent upon the amount of sales, maintenance and repairs, insurance,
taxes, assessments, water rates or similar charges.
“
Authenticating Agent
” means any Person authorized by the Trustee pursuant to Section 614 to
act on behalf of the Trustee to authenticate Securities of one or more series.
“Board of Directors
” means either the board of directors of the Company or any duly authorized
committee appointed by that board.
“
Board Resolution
” means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification. Where any provision of this Indenture refers
to action to be taken pursuant to a Board Resolution (including establishment of any series of the
Securities and the forms and terms thereof), such action may be taken by any committee, 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 generally in that
Place of Payment are authorized or obligated by law or executive order to close, unless otherwise
specified in a form of Security.
“
Commission
” means the Securities and Exchange Commission, as from time to time constituted,
created under the Securities Exchange Act of 1934, as amended, or, if at any time
2
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.
“
Company
” means the Person named as the “
Company
” in the first paragraph of this instrument
until a successor corporation shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “
Company
” shall mean such successor corporation.
“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.
“
Consolidated Net Tangible Assets
” means the aggregate amount of assets (less applicable
reserves and other properly deductible items) after deducting therefrom (a) all current liabilities
(excluding any indebtedness for money borrowed having a maturity of less than 12 months from the
date of the most recent consolidated balance sheet of the Company but which by its terms is
renewable or extendable beyond 12 months from such date at the option of the borrower) and (b) all
goodwill, trade names, patents, unamortized debt discount and expense and any other like
intangibles, all as set forth on the most recent consolidated balance sheet of the Company and
computed in accordance with generally accepted accounting principles.
“
Corporate Trust Office
” means the office of the Trustee in Indianapolis, Indiana at which at
any particular time its corporate trust business shall be principally administered.
“
Corporation
” includes corporations, associations, companies, limited liability companies,
joint stock companies and business trusts.
“
Debt
” has the meaning specified in Section 1007.
“
Defaulted Interest
” has the meaning specified in Section 307.
“
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 clearing agency registered under the
Exchange Act, specified for that purpose as contemplated by Section 301 or any successor clearing
agency registered under the Exchange Act as contemplated by Section 305, and if at any time there
is more than one such Person, “
Depositary
” as used with respect to the Securities of any series
shall mean the Depositary with respect to the Securities of such series.
“
Event of Default
” has the meaning specified in Section 501.
“
Exchange Act
” means the Securities Exchange Act of 1934, as amended.
“
Funded Debt
” means Debt which by its terms is not junior in right of payment to the
Securities and matures at or is extendible or renewable at the option of the obligor to a date more
than 12 months after the date of the creation of such Debt.
3
“
Global Security
” means a Security bearing the legend specified in Section 203 evidencing all
or part of a series of Securities, issued to the Depositary for such series or its nominee, and
registered in the name of such Depositary or nominee.
“
Holder
” means a Person in whose name a Security is registered in the Security Register.
“
Indenture
” means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of particular series of Securities
established as contemplated by Section 301; provided, however, that, if at any time more than one
Person is acting as Trustee under this instrument due to the appointment of one or more separate
Trustees for any one or more separate series of Securities pursuant to Section 610(e), “
Indenture
”
shall mean, with respect to such series of Securities for which any such Person is Trustee, this
instrument as originally executed or as it may from time to time be supplemented or amended by one
or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities for which such Person is Trustee
established as contemplated by Section 301, exclusive, however, of any provisions or terms which
relate solely to other series of Securities for which such Person is not Trustee, regardless of
when such terms or provisions were adopted, and exclusive of any provisions or terms adopted by
means of one or more indentures supplemental hereto executed and delivered after such Person had
become such Trustee but to which such Person, as such Trustee, was not a party.
“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.
“
Lien
” or “
Liens
” has the meaning specified in Section 1007.
“
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 at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“
Officers’ Certificate
” means a certificate signed by the Chairman of the Board, the
President, a Vice President or an Assistant Vice President of the Company, and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
“
Opinion of Counsel
” means a written opinion of counsel, who may be counsel for the Company.
“
Original Issue Discount Security
” means any Security which provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502.
4
“
Outstanding
”, when used with respect to Securities, means, as of the date of determination,
all Securities theretofore authenticated and delivered under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered to the Trustee for
cancellation;
(b) Securities for whose payment or redemption money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if such Securities are to
be redeemed, notice of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made; and
(c) Securities which have been paid pursuant to Section 306 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 bona
fide purchaser in whose hands such Securities are valid 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 whether a quorum is present at a meeting of Holders of Securities, (i) the
principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding
shall be the amount of the principal thereof that would be due and payable as of the date of such
determination upon acceleration of the Maturity thereof pursuant to Section 502, (ii) the principal
amount of a Security denominated in one or more foreign currencies or currency units that shall be
deemed to be Outstanding shall be the U.S. dollar equivalent, determined in the manner provided as
contemplated by Section 301 as of the date of original issuance of such Security, of the principal
amount (or, in the case of an Original Issue Discount Security, the U.S. dollar equivalent,
determined as of the date of original issuance of such Security, of the amount determined as
provided in (i) above) of such Security as determined by the Company pursuant to Section 301, and
(iii) 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 (and
premium, if any) and/or interest on any Securities on behalf of the Company.
“
Periodic Offering
” means an offering of Securities of a series from time to time the specific
terms of which Securities, including without limitation the rate or rates of interest (or
5
formula for determining the rate or rates of interest), if any, thereon, the Stated Maturity
or Maturities thereof and the redemption provisions, if any, with respect thereto, are to be
determined by the Company or its agents upon the issuance of such Securities.
“
Person
” means any individual, Corporation, partnership, joint venture, association, joint
stock company, trust, unincorporated organization or government or any agency or political
subdivision thereof.
“
Place of Payment
”, when used with respect to the Securities of any series, means the place or
places where the principal of (and premium, if any) and/or interest on the Securities of that
series are payable, 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.
“
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 306 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.
“
Principal Property
” means any manufacturing plant located within the United States of America
(other than its territories or possessions) and owned by the Company or any Subsidiary, the gross
book value (without deduction of any depreciation reserves) of which on the date as of which the
determination is being made exceeds 2% of Consolidated Net Tangible Assets of the Company, except
any such plant which is not of material importance to the business conducted by the Company and its
Subsidiaries, taken as a whole (as determined by any two of the following: the Chairman or a Vice
Chairman of the Board of the Company, its President, its Chief Financial Officer, its Vice
President of Finance, its Treasurer or its Controller).
“
Property
” means any kind of property or asset, whether real personal or mixed, tangible or
intangible.
“
Redemption Date
”, when used with respect to any Security to be redeemed, means the date fixed
for such redemption 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.
“
Regular Record Date
” for the interest payable on any Interest Payment Date on the Securities
of any series means the date specified for that purpose as contemplated by Section 301.
“Required Currency
” has the meaning specified in Section 311.
“
Responsible Officer
”, when used with respect to the Trustee, means any officer of the Trustee
assigned by it to administer its corporate trust matters.
“
Sale and Leaseback Transaction
” has the meaning specified in Section 1008.
6
“
Securities
” has the meaning stated in the first recital of this Indenture and more
particularly means any Securities authenticated and delivered under this Indenture; provided,
however, that if at any time there is more than one Person acting as Trustee under this Indenture,
“
Securities
” with respect to the Indenture as to which such Person is Trustee shall have the
meaning stated in the first recital of this Indenture and shall more particularly mean Securities
authenticated and delivered under this Indenture, exclusive, however, of Securities of any series
as to which such Person is not Trustee.
“
Security Register
” and “
Security Registrar
” have the respective meanings specified in Section
305.
“
Significant Subsidiary
” means (i) any direct or indirect Subsidiary of the Company that would
be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Securities Act of 1933, as amended, as such regulation is in effect on the date
hereof, or (ii) any group of direct or indirect Subsidiaries of the Company that, taken together as
a group, would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act of 1933, as amended, as such regulation is in effect on
the date hereof.
“
Special Record Date
” for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 307.
“
Stated Maturity
”, when used with respect to any Security or any installment of principal
thereof or interest thereon, means the date specified in such Security as the fixed date on which
the principal of such Security or such installment of principal or interest is due and payable.
“
Subsidiary
” means any Corporation of which securities (excluding securities entitled to vote
for directors only by reason of the happening of a contingency) entitled to elect at least a
majority of the Corporation’s directors shall at the time be owned, directly or indirectly, by the
Company, or one or more Subsidiaries, or by the Company and one or more Subsidiaries.
“
Trust Indenture Act
” or “
TIA
” means the Trust Indenture Act of 1939 as in force at the date
as of which this instrument was executed, except as provided in Section 905.
“
Trustee
” means the Person named as the “
Trustee
” in the first paragraph of this instrument
until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “
Trustee
” shall mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person, “
Trustee
” as used with respect to
the Securities of any series shall mean the Trustee with respect to Securities of that series.
“
U.S. Government Obligations
” means direct obligations of the United States of America, backed
by its full faith and credit.
“
Vice President
”, when used with respect to the Company, means any vice president, whether or
not designated by a number or a word or words added before or after the title “vice president”.
7
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any action under any
provision of this Indenture, the Company shall furnish to the Trustee, if so requested by the
Trustee, an Officers’ Certificate stating that all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied with and an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this Indenture relating
to such particular application or request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture shall include:
(a) a statement that each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he has made such
examination or investigation as is necessary to enable him to express an informed opinion
whether such covenant or condition has been complied with; and
(d) a statement whether, in the opinion of each such individual, such condition or
covenant has been complied with.
SECTION 103. 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 any 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 such officer’s 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.
8
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 104. 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 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 601) conclusive in favor of the Trustee and the Company, if made in the manner provided in
this Section.
(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 such instrument or writing acknowledged to him the execution thereof. Where such execution
is by a signer acting in a capacity other than such signer’s individual capacity, such certificate
or affidavit shall also constitute sufficient proof of such signer’s 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 Security Register. The Company may fix
any day as the record date for the purpose of determining the Holders of Securities of any series
entitled to give or take any request, demand, authorization, direction, notice, consent, waiver or
other action, or to vote on any action, authorized or permitted to be given or taken by Holders of
Securities of such series. If not set by the Company prior to the first solicitation of a Holder
of Securities of such series made by any Person in respect of any such action, or, in the case of
any such vote, prior to such vote, the record date for any such action or vote shall be the 30th
day (or, if later, the date of the most recent list of Holders required to be provided pursuant to
Section 701) prior to such first solicitation or vote, as the case may be. With regard to any
record date for action to be taken by the Holders of one or more series of Securities, only the
Holders of Securities of such series on such date (or their duly designated proxies) shall be
entitled to give or take, or vote on, the relevant action.
(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.
9
SECTION 105. 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,
(a) the Trustee by any Holder or by the Company shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if made, given, furnished or filed in
writing to or with a Responsible Officer of the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Department, or
(b) 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 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at such Holder’s address as it
appears in the Security Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where
this Indenture provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action taken in reliance upon
such waiver.
In case by reason of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give such notice by mail, then such notification as shall be made by or
with the approval of the Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 107. Compliance with Trust Indenture Act.
This Indenture is subject to, and shall be governed by, the provisions of the Trust Indenture
Act that are required to be part of this Indenture. If any provision hereof limits, qualifies or
conflicts with a provision of the Trust Indenture Act that is required under the Trust Indenture
Act to be a part of and govern this Indenture, the provision of the Trust Indenture Act shall
control. If any provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act 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.
10
SECTION 108. 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 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company or the Trustee shall bind its
successors and assigns, whether so expressed or not.
SECTION 110. 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 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person,
other than the parties hereto, any Authenticating Agent, any Paying Agent, any Securities
Registrar, and their successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in accordance with the
laws of the State of New York.
SECTION 113. Legal Holidays.
Except as may be otherwise specified with respect to any particular Securities, in any case
where any Interest Payment Date, Redemption Date or Stated 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) 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, or at the Stated Maturity, provided that no interest shall accrue for the period
from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in such form as shall be established by or pursuant to
a Board Resolution and set forth in an Officers’ Certificate or established by one or more
indentures supplemental hereto, in each case with such appropriate insertions, omissions,
11
substitutions and other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities, as evidenced by
their execution of the Securities. If the form of Securities of any series 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 303 for the authentication
and delivery of such Securities.
The Trustee’s certificates of authentication shall be in substantially the form set forth in
this Article with such appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture.
The definitive Securities may be printed, lithographed or engraved on steel engraved borders
or may be produced in any other manner, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
SECTION 202. Form of Trustee’s Certificate of Authentication.
The Trustee’s certificate of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein and issued pursuant to the
within-mentioned Indenture.
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U.S. BANK NATIONAL ASSOCIATION,
as Trustee
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By:
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Authorized Officer
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SECTION 203. Form of Legend for Global Securities.
Any Global Security authenticated and delivered hereunder shall bear a legend in substantially
the following form or such similar form as may be required by the Depositary:
“Unless this certificate is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) to the issuer or to
its agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or such other name as requested by
an authorized representative of The Depository Trust Company and any payment is made
to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS
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WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.”
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established by or pursuant
to a Board Resolution and, subject to Section 303, set forth or determined in the manner provided
in an Officers’ Certificate or established in one or more indentures supplemental hereto, prior to
the initial issuance of Securities of any series,
(a) the title of the Securities of the series (which shall distinguish the Securities
of the series from Securities of any other series);
(b) 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 lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906, 1107 and except for any Securities which,
pursuant to Section 303, are deemed never to have been authenticated and delivered
hereunder);
(c) the Person to whom any interest on a Security of the series shall be payable, if
other than 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;
(d) the date or dates on which the principal or installments of principal and premium,
if any, of the Securities of the series is or are payable and any rights to extend such date
or dates;
(e) the rate or rates at which the Securities of the series shall bear interest, if
any, or the formula pursuant to which such rate or rates shall be determined, the date or
dates from which such interest shall accrue, the Interest Payment Dates on which such
interest shall be payable, the Regular Record Date for the interest payable on any Interest
Payment Date and the circumstances, if any in which the Company may defer interest payments;
(f) the place or places where the principal of (and premium, if any) and interest on
Securities of the series shall be payable, any Securities of the series may be surrendered
for registration of transfer or exchange and notices and demands to or upon the Company with
respect to the Securities of the series and this Indenture may be served;
13
(g) if applicable, the period or periods within which, the price or prices at which and
the terms and conditions upon which Securities of the series may be redeemed, in whole or in
part, at the option of the Company;
(h) the obligation, if any, of the Company to redeem or purchase Securities of the
series pursuant to any sinking fund or analogous provisions or at the option of a Holder
thereof and the period or periods within which, the price or prices at which and the terms
and conditions upon which Securities of the series shall be redeemed or purchased, in whole
or in part, pursuant to such obligation;
(i) if other than denominations of $1,000 or any amount in excess thereof which is an
integral multiple of $1,000, the denominations in which Securities of the series shall be
issuable;
(j) the currency, currencies or currency units in which payment of the principal of and
any premium and interest on any Securities of the series shall be payable if other than the
currency of the United States of America, the manner of determining the U.S. dollar
equivalent of the principal amount thereof for purposes of the definition of “
Outstanding
”
in Section 101, and, if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the Company or a Holder
thereof, in one or more currencies or currency units other than that or those in which the
Securities are stated to be payable, the currency, currencies or currency units in which
payment of the principal of and any premium and interest on Securities of such series as to
which such election is made shall be payable, and the periods within which and the terms and
conditions upon which such election is to be made;
(k) any other event or events of default applicable with respect to Securities of the
series in addition to or in lieu of those provided in Section 501(a)-(g);
(l) if less 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 502;
(m) whether the Securities of the series shall be issued in whole or in part in the
form of one or more Global Securities and, if so, (i) the Depositary with respect to such
Global Security or Securities and (ii) the circumstances under which any such Global
Security may be exchanged for Securities registered in the name of, and any transfer of such
Global Security may be registered to, a Person other than such Depositary or its nominee, if
other than as set forth in Section 305;
(n) if principal of or any premium or interest on the Securities of a series is
denominated or payable in a currency or currencies other than the currency of the United
States of America, whether and under what terms and conditions the Company may be discharged
from obligations pursuant to Sections 403 and 1009 with respect to Securities of such
series; and
(o) any other terms of the series (which terms shall not be inconsistent with the
provisions of this Indenture, except as permitted by Section 901(e)).
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All Securities of any one series (other than Securities offered in a Periodic Offering) shall
be substantially identical except as to denomination and except as may otherwise be provided by or
pursuant to the Board Resolution referred to above and, subject to Section 303, set forth, or
determined in the manner provided, in the Officers’ Certificate referred to above or in any such
indenture supplemental hereto.
If any of the terms of the 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.
With respect to Securities of a series offered in a Periodic Offering, such Board Resolution
and Officers’ Certificate or supplemental indenture may provide general terms or parameters for
Securities of such series and provide either that the specific terms of particular Securities of
such series shall be specified in a Company Order or that such terms shall be determined by the
Company or its agents in accordance with other procedures specified in a Company Order as
contemplated by the third paragraph of Section 303.
SECTION 302. Denominations.
Unless otherwise provided in the applicable Officers’ Certificate or supplemental indenture,
the Securities of each series shall be issued in registered form without coupons in such
denominations as shall be specified as contemplated by Section 301. In the absence of any such
provisions with respect to the Securities of any series, the Securities of such series shall be
issuable in denominations of $1,000 or any amount in excess thereof which is an integral multiple
of $1,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman of the Board, its
President or one of its Vice Presidents, 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.
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 date of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and delivery of such
Securities, or, in the case of Securities offered in a Periodic Offering, from time to time in
accordance with such other procedures (including, without limitation, the receipt by the Trustee of
electronic instructions from the Company or its duly authorized agents, promptly confirmed in
writing by the Company) acceptable to the Trustee as may be specified from time to time by a
Company Order for establishing the specific terms of particular Securities being so offered, and
the Trustee in accordance with the Company Order shall authenticate and deliver such Securities.
If the form or forms or terms of the Securities of the series have been established by
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or pursuant
to one or more Board Resolutions as permitted by Sections 201 and 301, 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 601) shall be fully
protected in relying upon, an Opinion of Counsel stating,
(a) that the form or forms of such Securities have been established in conformity with
the provisions of this Indenture;
(b) that the terms of such Securities have been established in conformity with the
provisions of this Indenture; and
(c) that such Securities, 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,
reorganization and other laws of general applicability relating to or affecting the
enforcement of creditors’ rights and to general equity principles.
provided
, however, that, with respect to Securities of a series offered in a Periodic Offering, the
Trustee shall be entitled to receive such Opinion of Counsel in connection only with the first
authentication of each form of Securities of such series and that the opinions described in Clauses
(b) and (c) above may state, respectively, that
(i) if the terms of such Securities are to be established pursuant to a Company Order
or pursuant to such procedures as may be specified from time to time by a Company Order, all
as contemplated by a Board Resolution or action taken pursuant thereto, such terms will have
been duly authorized by the Company and established in conformity with the provisions of
this Indenture; and
(ii) that such Securities, when executed by the Company, completed, authenticated and
delivered by the Trustee in accordance with this Indenture, and issued and delivered by the
Company and paid for, all in accordance with any agreement of the Company relating to the
offering, issuance and sale of such Securities, will be duly issued under this Indenture and
will constitute valid and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency, reorganization, moratorium
and other laws relating to or affecting generally the enforcement of creditors’ rights and
to general principles of equity.
With respect to Securities of a series offered in a Periodic Offering, the Trustee may rely,
as to the authorization by the Company of any of such Securities, the form or forms and terms
thereof and the legality, validity, binding effect and enforceability thereof, upon the Opinion of
Counsel, Company Order and other documents delivered pursuant to Sections 201 and 301 and this
Section, as applicable, in connection with the first authentication of a form of Securities of such
series and it shall not be necessary for the Company to deliver such Opinion of Counsel and other
documents (except as may be required by the specified other procedures, if any, referred to above)
at or prior to the time of authentication of each Security of such series unless and until the
Trustee receives notice that such Opinion of Counsel or other documents have been superseded
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or
revoked, and may assume compliance with any conditions specified in such Opinion of Counsel (other
than any conditions to be performed by the Trustee). If such form or forms 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.
Each Security shall be dated the date of its authentication.
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 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.
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 309 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of Counsel) stating that
such Security has never been issued and sold by the Company, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
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 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 evidenced by their execution of such Securities.
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 like tenor 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 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 and of like tenor and
of any authorized denominations. 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 and tenor.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register
(the “
Security Register
”) in which, subject to such reasonable regulations as it may
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prescribe, the
Company shall provide for the registration of Securities and of transfers of Securities. The
Trustee is hereby appointed “
Security Registrar
” for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any series at the office or
agency of the Company in any Place of Payment for such series, the Company shall execute and the
Trustee shall authenticate and deliver (in the name of the designated transferee or transferees)
one or more new Securities of the same series, of any authorized denominations and of a like
aggregate principal amount and tenor.
At the option of the Holder, Securities of any series may be exchanged for other Securities of
the same series, of any authorized denominations and of a like aggregate principal amount and
tenor, upon surrender of the Securities to be exchanged at the office or agency of the Company in
any Place of Payment for such series. 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.
All Securities issued upon any registration of transfer or exchange of Securities shall be the
valid obligations of the Company evidencing the same debt, and entitled to the same benefits under
this Indenture as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for exchange shall (if
so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or such Holder’s 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 registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company may but shall not be required (i) to issue, register the transfer of or exchange
Securities of any series during a period beginning at the opening of business 15 days before the
day of the mailing of a notice of redemption of Securities of that series selected for redemption
under Section 1103 and ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange any Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part.
Notwithstanding the foregoing, except as otherwise specified as contemplated by Section 301,
any Global Security shall be exchangeable pursuant to this Section 305 for Securities registered in
the name of Persons other than the Depositary for such Security or its nominee only if (i) such
Depositary notifies the Company that it is unwilling or unable to continue as Depositary for such
Global Security or if at any time such Depositary ceases to be a clearing agency registered under
the Exchange Act, (ii) the Company executes and delivers to the Trustee a Company Order that such
Global Security shall be so exchangeable or (iii) there shall have occurred and be continuing an
Event of Default with respect to the Securities of such
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series. Upon the occurrence in respect of
any Global Security of any series of any one or more of the conditions specified in Clauses (i),
(ii) or (iii) of the preceding sentence or such other conditions as may be specified as
contemplated by Section 301 for such series, such Global Security may be exchanged for Securities
not bearing the legend specified in Section 203 and registered in the names of such Persons as may
be specified by the Depositary (including Persons other than the Depositary).
Notwithstanding any other provision of this Indenture, a Global Security may not be
transferred except as a whole by the Depositary for such Global Security to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and
of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be
required by them to save each of them and 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 upon its written request the Trustee shall authenticate
and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same
series and of like tenor and principal amount and 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, the Company in its discretion may, instead of issuing a new Security, pay
such Security.
Upon the issuance of any new Security under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series issued pursuant to this Section in lieu of any 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 the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities.
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SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 301 with respect to any series of
Securities, interest on any Security which is payable, and is punctually paid or duly provided for,
on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered in the Security Register at the close of business
on the Regular Record Date for such Interest Payment Date.
Any interest on any Security of any series which is payable but is not punctually paid or duly
provided for on any Interest Payment Date (herein called “
Defaulted Interest
”) shall forthwith
cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the 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
Security of such series and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be not more than 15 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 Securities of such series at such Holder’s 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
so mailed, such Defaulted Interest shall be paid to the Persons in whose names the
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 (b).
(b) The Company may make payment of any Defaulted Interest on the 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.
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Subject to the foregoing provisions of this Section, each Security delivered under this
Indenture upon registration of transfer of, or in exchange for, or in lieu of, any other Security
shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
SECTION 308. 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 in the Security Register as the owner of such Security for the purpose of receiving
payment of principal of (and premium, if any) and (subject to Section 307) interest on such
Security and for all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
No holder of any beneficial interest in any Global Security held on its behalf by a Depositary
(or its nominee) shall have any rights under this Indenture with respect to such Global Security or
any Security represented thereby, and such Depositary may be treated by the Company, the Trustee,
and any agent of the Company or the Trustee as the owner of such Global Security or any Security
represented thereby for all purposes whatsoever. 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 a Depositary or impair, as between a Depositary and such holders of
beneficial interest, the operation of customary practices governing the exercise of the rights of
the Depositary (or its nominees) as Holder of any Security.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, 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. 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 held by the Trustee shall be destroyed unless
otherwise directed by a Company Order.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 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.
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SECTION 311. Payment to be in Proper Currency.
In the case of any Securities denominated in any currency (the “
Required Currency
”) other than
United States of America dollars, except as otherwise provided therein, the obligation of the
Company to make any payment of principal, premium or interest thereon shall not be discharged or
satisfied by any tender by the Company, or recovery by the Trustee, in any currency other than the
Required Currency, except to the extent that such tender or recovery shall result in the Trustee
timely holding the full amount of the Required Currency then due and payable. If any such tender
or recovery is in a currency other than the Required Currency, the Trustee may take such actions as
it considers appropriate to exchange such currency for the Required Currency. The costs and risks
of any such exchange, including without limitation the risks of delay and exchange rate
fluctuation, shall be borne by the Company, the Company shall remain fully liable for any shortfall
or delinquency in the full amount of Required Currency then due and payable, and in no
circumstances shall the Trustee be liable therefor except in the case of its negligence or willful
misconduct.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein expressly provided
for), and the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(a) either
(1) all Securities theretofore authenticated and delivered (other than (i)
Securities which have been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 306 and (ii) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the Company
and thereafter repaid to the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation; or
(2) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one
year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
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redemption by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or caused to
be deposited with the Trustee as trust funds in trust for the purpose an amount in
the currency in which such Securities are payable (or, at the election of the
Company in the case of Securities payable in United States dollars, direct
obligations of, or obligations the principal of and interest on which are fully
guaranteed by, the United States of America (other than obligations subject to
prepayment, redemption or call prior to their stated maturity) as will be, together
with the predetermined and certain income to accrue thereon (without consideration
of any reinvestment thereof)) sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest to the date of such
deposit (in the case of Securities which have become due and payable) or to the
respective Stated Maturity or Redemption Date, as the case may be;
(b) the Company has paid or caused to be paid all other sums payable hereunder by the
Company, and
(c) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 607, the obligations of the Trustee to any Authenticating
Agent under Section 614, and, if money shall have been deposited with the Trustee pursuant to
Subclause (2) of Clause (a) of this Section, the obligations of the Trustee under Section 402 and
the last paragraph of Section 1003, shall survive.
SECTION 402. Application of Trust Money.
Subject to provisions of the last paragraph of Section 1003, all money deposited with the
Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance with the
provisions of the Securities 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 for whose
payment such money has been deposited with the Trustee but such money need not be segregated from
other funds except to the extent required by law.
SECTION 403. Defeasance and Discharge of Indenture.
If principal of and any premium and interest on Securities of any series are denominated and
payable in United States of America dollars, the Company shall be deemed to have paid and
discharged the entire indebtedness on all the Outstanding Securities of such series on the 91st day
after the date of the deposit referred to in subparagraph (a) hereof, and the provisions of this
Indenture, as it relates to such Outstanding Securities, shall no longer be in effect (and the
Trustee, at the expense of the Company, shall at Company Request, execute proper instruments
23
acknowledging the same), except as to (1) the rights of Holders of Securities to receive, from the
trust funds described in subparagraph (a) hereof, (i) payment of the principal of (and premium, if
any) or interest on the Outstanding Securities on the Stated Maturity of such principal or
installment of principal or interest and (ii) the benefit of any mandatory sinking fund payments
applicable to the Securities on the day on which such payments are due and payable in accordance
with the terms of this Indenture and the Securities, (2) the Company’s obligations with respect to
such Securities under Sections 305, 306, 1002 and 1003, and (3) the rights, powers, trusts, duties
and immunities of the Trustee hereunder, provided that, the following conditions shall have been
satisfied:
(a) The Company has deposited or caused to be irrevocably deposited with the Trustee
(or another trustee satisfying the requirements of Section 609) as trust funds in the trust,
specifically pledged as security for, and dedicated solely to, the benefit of the Holders of
the Securities, (i) money in an amount, or (ii) U.S. Government Obligations which through
the payment of interest and principal in respect thereof in accordance with their terms will
provide not later than one day before the due date of any payment referred to in clause (A)
or (B) of this subparagraph (a) money in an amount or (iii) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered to the Trustee, to pay
and discharge (A) the principal of (and premium, if any) and each installment of principal
of (and premium, if any) and interest on the Outstanding Securities on the Stated Maturity
of such principal or installment of principal and interest and (B) any mandatory sinking
fund payments applicable to the Securities on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of the Securities;
(b) such deposit shall not cause the Trustee with respect to the Securities to have a
conflicting interest as defined in Section 608 and for purposes of the Trust Indenture Act
with respect to the Securities;
(c) such deposit will not result in a breach or violation of, or constitute a default
under, this Indenture or any other agreement or instrument to which the Company is a party
or by which it is bound;
(d) such provision would not cause any Outstanding Securities then listed on the New
York Stock Exchange or other securities exchange to be delisted as a result thereof;
(e) no Event of Default or event which with notice or lapse of time would become an
Event of Default with respect to the Securities shall have occurred and be continuing on the
date of such deposit or during the period ending on the 91st day after such date;
(f) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel to the effect that there has been a change in applicable Federal law such that, or
the Company has received from, or there has been published by, the Internal Revenue Service
a ruling to the effect that, Holders of the Securities will not recognize
24
income, gain or
loss for Federal income tax purposes as a result of such deposits, defeasance and discharge
and will be subject to Federal income tax on the same amount and in the same manner and at
the same times, as would have been the case if such deposit, defeasance and discharge had
not occurred; and
(g) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent relating to the defeasance contemplated
by this Section have been complied with.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
“
Event of Default
”, wherever used herein with respect to Securities of any series, and unless
otherwise provided with respect to Securities of any series pursuant to Section 301(k), 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):
(a) default in the payment of any interest upon any Security of that series when it
becomes due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of (or premium, if any, on) any Security of
that series at its Maturity; or
(c) default in the deposit of any sinking fund payment, when and as due by the terms of
a Security of that series; or
(d) default in the performance, or breach, of any covenant or warranty of the Company
in this Indenture (other than a covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of a series of one or more Securities
other than that series), and continuance of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of at least 25%
in aggregate principal amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and stating that such
notice is a “
Notice of Default
” hereunder; or
(e) an event of default, as defined in any indenture or instrument under which the
Company or any Subsidiary shall have outstanding at least $75,000,000 aggregate principal
amount of indebtedness for money borrowed, shall happen and be continuing and such
indebtedness shall, as a result thereof, have been accelerated so that the same shall be or
become due and payable prior to the date on which the same would otherwise have become due
and payable, and such acceleration shall not be rescinded or annulled
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within 10 days after
notice thereof shall have been given, by registered or certified mail, to the Company by the
Trustee, or to the Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Securities at the time Outstanding; provided, however, that if such
event of default under such indenture or instrument shall be remedied or cured by the
Company or waived by the Holders of such indebtedness, then, unless the Securities of any
series shall have been accelerated as provided herein, the Event of Default hereunder by
reason thereof shall be deemed likewise to have been thereupon remedied, cured or waived
without further action upon the part of either the Trustee or any Holders of the Securities
of any series; or
(f) the entry by a court having jurisdiction in the premises of (A) a decree or order
for relief in respect of the Company or any Significant Subsidiary in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or (B) a decree or order adjudging the Company or any Significant
Subsidiary a bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of the Company under
any applicable Federal or State law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company or a Significant
Subsidiary or of any substantial part of the property of the Company or a Significant
Subsidiary, or ordering the winding up or liquidation of the affairs of the Company or a
Significant Subsidiary, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 60 consecutive days; or
(g) the commencement by the Company or a Significant Subsidiary of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree or order for relief in respect of
the Company or a Significant Subsidiary in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or
to the commencement of any bankruptcy or insolvency case or proceeding against it, or the
filing by it of a petition or answer or consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by it to the filing of such petition or to
the appointment of or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or a Significant Subsidiary
or of any substantial part of the property of the
Company or a Significant Subsidiary, or the making by the Company or a Significant
Subsidiary of an assignment for the benefit of creditors, or the admission by the Company or
a Significant Subsidiary in writing of its inability to pay its debts generally as they
become due, or the taking of corporate action by the Company or a Significant Subsidiary in
furtherance of any such action; or
(h) any other Event of Default provided with respect to Securities of that series.
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SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Outstanding Securities of any series occurs and is
continuing (other than an Event of Default specified in Section 501(f) or (g) with respect to the
Company), then and in every such case the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities of that series may declare the principal amount (or,
if any of the Securities of that series are Original Issue Discount Securities, such lesser portion
of the principal amount of such Securities as may be specified in the terms thereof) of all of the
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 portion thereof) shall become immediately due and payable. If an Event of Default
specified in Section 501(f) or (g) with respect to the Company shall occur, then the principal
amount (or, if any of the Securities of that series are Original Issue Discount Securities, such
lesser portion of the principal amount of such Securities as may be specified in the terms thereof)
of all of the Securities shall automatically become immediately due and payable.
At any time after such a declaration of acceleration with respect to Outstanding Securities of
any series has been made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum sufficient to pay
(1) all overdue interest on all Securities of that series,
(2) the principal of (and premium, if any, on) any Securities of that series
which have become due otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed therefor in such Securities,
(3) to the extent that payment of such interest is lawful, interest upon
overdue interest at the rate or rates prescribed therefor in such Securities, and
(4) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section 607; and
(b) all Events of Default with respect to Securities of that series, other than the
non-payment of the principal of Securities of that series which have become due solely by
such declaration of acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
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SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(a) default is made in the payment of any interest on any Security when such interest
becomes due and payable and such default continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or premium, if any, on) any
Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such
Security, the whole amount then due and payable on such Security for principal (and premium, if
any) and interest 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 interest at the rate or
rates prescribed therefor in such Security, 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.
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, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Security and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the property of the Company
or any other obligor upon such Security, 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 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 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the
Company or any other obligor upon the Securities or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal of 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 overdue
principal or interest) shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(a) to file and prove a claim for the whole amount of principal (and premium, if any)
or such portion of the principal amount of any series of Original Issue Discount Securities
as may be specified in the terms of such series and interest owing and unpaid in respect of
the Securities and to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for
28
the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 607) 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 other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due 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 607.
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 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities 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 for any other amounts due the Trustee under Section 607,
be for the ratable benefit of the Holders of the Securities in respect of which such judgment has
been recovered.
SECTION 506. 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, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
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FIRST:
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To the payment of all amounts due the Trustee under Section 607;
and
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SECOND:
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To the payment of the amounts then due and unpaid for principal of
(and premium, if any) and interest on the Securities 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, respectively; and
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THIRD:
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The balance, if any, to the Person or Persons entitled thereto.
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SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless
(a) such Holder has previously given written notice to the Trustee of a continuing
Event of Default with respect to the Securities of that series;
(b) 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;
(c) such Holder or Holders have offered to the Trustee reasonable indemnity against the
costs, expenses and liabilities to be incurred in compliance with such request;
(d) the Trustee, for 60 days after its receipt of such notice, request and offer of
indemnity, has failed to institute any such proceeding; and
(e) 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 508. Unconditional Right of Holders to Receive Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional, to receive payment of the principal of (and
premium, if any) and (subject to Section 307) interest on such Security on the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and
to institute suit for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every such case, 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 shall continue as though no such proceeding had been
instituted.
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SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 306, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities 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 512. Control by Holders.
The Holders of a majority in aggregate 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
(a) such direction shall not be in conflict with any rule of law or with this
Indenture, and
(b) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal amount of the Outstanding
Securities of any series may, on behalf of the Holders of all the Securities of such series, waive
any past default hereunder with respect to such series and its consequences, except a default
(a) in the payment of the principal of (or premium, if any) or interest on any Security
of such series, or
(b) in respect of a covenant or provision hereof which under Article Nine cannot be
modified or amended without the consent of the Holder of each Outstanding Security of such
series affected.
The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Persons entitled to waive any past default hereunder. If a record date is fixed,
the
31
Holders on such record date, or their duly designated proxies, and only such Persons, shall be
entitled to waive any default hereunder, whether or not such Holders remain Holders after such
record date; provided, that unless such majority in principal amount shall have waived such default
prior to the date which is 90 days after such record date, any such waiver of such default
previously given shall automatically and without further action by any Holder be canceled and of no
further effect.
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 thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by such Holder’s
acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party
litigant in such suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; provided, however, that the provisions of this Section shall not apply
to any suit instituted by the Company, to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or interest on any Security on
or after the Stated Maturity or Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it will not at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any
stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully
do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will
not hinder, delay or impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The provisions of TIA Section 315 shall apply to the Trustee.
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SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect to the Securities of
any series, the Trustee shall transmit by mail to all Holders of Securities 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 on any
Security of such series or in the payment of any sinking fund installment with respect to
Securities of such series, the Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee or a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determine that the withholding of such notice is
in the interest of the Holders of Securities of such series; and provided, further, that in the
case of any default of the character specified in Section 501(d) with respect to Securities of such
series, no such notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, therein “
default
” 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.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of TIA Section 315(a) through 315(d):
(a) the Trustee may rely and shall be protected in acting or refraining from acting
upon any resolution, certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order or as otherwise expressly provided herein
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 any
action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers’ Certificate;
(d) the Trustee may consult with counsel 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 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;
33
(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 fact or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder;
(h) the Trustee shall not be liable for any action taken, suffered or omitted by it in
good faith and believed by it to be authorized or within the discretion, rights or powers
conferred upon it by this Indenture;
(i) delivery of reports, information and documents to the Trustee under Section 704(a)
and 704(b) is for informational purposes only and the Trustee’s receipt of the foregoing
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company’s compliance with any
of their covenants hereunder (as to which the Trustee is entitled to rely exclusively on
Officers’ Certificates); and
(j) except with respect to Section 1001, the Trustee shall have no duty to inquire as
to the performance of the Company with respect to the covenants contained in Article Ten.
In addition, the Trustee shall not be deemed to have knowledge of an Event of Default except
(i) any Event of Default occurring pursuant to Sections 1001, 501(a), 501(b) or 501(c) or
(ii) any Event of Default of which the Trustee shall have received written notification or
obtained actual knowledge.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee’s certificates of
authentication, shall be taken as the statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the Securities. 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 605. 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, subject to TIA Sections 310(b) and 311, 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.
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SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(a) to pay to the Trustee from time to time reasonable compensation for all services
rendered by it hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(b) 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
(c) to indemnify the Trustee and its agents for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties hereunder.
The obligations of the Company under this Section 607 to compensate and indemnify the Trustee
and to pay or reimburse the Trustee for expenses, disbursements and advances shall constitute
additional indebtedness hereunder and shall survive the satisfaction and discharge of this
Indenture. Such additional indebtedness shall be a senior claim to that of the Securities upon all
property and funds held or collected by the Trustee as such, except funds held in trust for the
payment of principal of (and premium, if any) or interest on particular Securities, and the
Securities are hereby subordinated to each senior claim.
SECTION 608. Disqualification; Conflicting Interests.
The provisions of TIA Section 310(b) shall apply to the Trustee.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be eligible to act under TIA
Section 310(a)(1) and shall have a combined capital and surplus of at least $50,000,000 and subject
to supervision or examination by Federal, State or District of Columbia authority. If such
Corporation 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 Corporation shall be deemed to be its combined capital
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and surplus as set forth in its most recent report of condition so published. 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.
Neither the Company, nor any Person directly or indirectly controlling, controlled by or under
common control with the Company, shall act as Trustee hereunder.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of Section 611.
(b) 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 611 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.
(c) 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.
(d) If at any time:
(1) the Trustee shall fail to comply with TIA Section 310(b) after written request
therefor by the Company or by any Holder who has been a bona fide Holder of a Security for
at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall fail to resign
after written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the Trustee with respect
to all Securities, or (ii) subject to Section 514, any Holder who has been a bona fide Holder of a
Security 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 with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any cause, with respect to the 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
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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 611. 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 611,
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 and
accepted appointment in the manner required by Section 611, 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.
(f) The Company shall give notice of each resignation and each removal of the Trustee with
respect to the Securities of any series and each appointment of a successor Trustee with respect to
the Securities of any series by mailing written notice of such event by first-class mail, postage
prepaid, to all Holders of Securities of such series as their names and addresses appear in the
Security Register. 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 611. Acceptance of Appointment by Successor.
(a) 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 charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with respect to the Securities
of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee
with respect to the Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment and which (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 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
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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. Whenever there is a successor Trustee with respect to one or more (but less than all)
series of securities issued pursuant to this Indenture, the terms “
Indenture
” and “
Securities
”
shall have the meanings specified in the provisos to the respective definitions of those terms in
Section 101 which contemplate such situation.
(c) Upon request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts referred to in paragraph (a) and (b) of this Section, as the case
may be.
(d) No successor Trustee shall accept its appointment unless at the time of such acceptance
such successor Trustee shall be qualified and eligible under this Article.
SECTION 612. 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 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, 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; in case any of the Securities
shall not have been authenticated by the Trustee then in office, any successor by merger,
conversion or consolidation to such Trustee may authenticate such Securities either in the name of
such predecessor hereunder or in the name of the successor Trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Securities or in this Indenture
provided that the certificate of the Trustee shall have; provided, however, that the right to adopt
the certificate of authentication of any predecessor Trustee or to authenticate Securities in the
name of any predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
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SECTION 613. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a). A Trustee which has resigned or been
removed is subject to TIA Section 311(a) to the extent indicated therein.
SECTION 614. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding the Trustee, with the concurrence 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, 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 shall be acceptable to the Company and shall at all times be a Corporation
organized and doing business under the laws of the United States of America, any State thereof or
the District of Columbia authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $50,000,000 and subject to supervision or examination
by Federal, State or District of Columbia 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 shall
cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in this Section.
Any Corporation into which an Authenticating Agent may be merged or converted or with which it
may be consolidated, or any Corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any Corporation succeeding to the corporate
agency or corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such Corporation shall be otherwise eligible under this Section,
without the execution or filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee
and to the Company. The Trustee may at anytime terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the Company 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
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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.
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, the
Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate of
authentication an alternate certificate of authentication in the following form:
This is one of the Securities of the series designated herein and issued pursuant to the
within-mentioned Indenture.
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U.S. BANK NATIONAL ASSOCIATION,
as Trustee
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By:
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as Authenticating Agent
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By:
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Authorized Officer
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ARTICLE SEVEN
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
If the Trustee is not acting as Security Registrar for the Securities of any series, the
Company will furnish or cause to be furnished to the Trustee:
(a) at intervals of no more than six months commencing after the first issue of such
series, a list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders as of a date not more than 15 days prior to the time such
information is furnished, 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.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names
and addresses of Holders contained in the most recent list furnished to the Trustee as
40
provided in Section 701 and the names and addresses of Holders received by the Trustee in its
capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of 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 TIA Section 312(b).
(c) Every Holder of Securities, 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 the disclosure of any such information as to the names and addresses of
the Holders in accordance with Section 702(b), regardless of the source from which such information
was derived, and that the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 702(b).
SECTION 703. Reports by Trustee.
Within 60 days after May 1 of each year commencing with the later of May 1, 2011 or the first
May 1 after the first issuance of Securities pursuant to this Indenture, the Trustee shall transmit
by mail to all Holders of Securities as provided in TIA Section 313(c) a brief report dated as of
such May 1 if required by TIA Section 313(a) or 313(b). A copy of each such report shall, at the
time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which
any Securities are listed, with the Commission and with the Company. The Company will notify the
Trustee when any Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall:
(a) file with the Trustee, within 15 days after the Company is required to file the
same with the Commission, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934; or, if the Company is not required to file information, documents or reports
pursuant to either of said Sections, then it shall file with the Trustee and the Commission,
in accordance with rules and regulations prescribed from time to time by the Commission,
such of the supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in respect of a
security listed and registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such additional information, documents and
reports with respect to compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and regulations;
41
(c) transmit by mail to all Holders, as their names and addresses appear in the
Security Register, within 30 days after the filing thereof with the Trustee, such summaries
of any information, documents and reports required to be filed by the Company pursuant to
paragraphs (a) and (b) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission; and
(d) furnish to the Trustee, within 120 days after the end of each fiscal year of the
Company ending after the date hereof, a brief certificate of the Company’s principal
executive officer, principal financial officer or principal accounting officer as to his or
her knowledge of the Company’s compliance with all conditions and covenants under this
Indenture. For purposes of this paragraph, such compliance shall be determined without
regard to any period of grace or requirement of notice provided under this Indenture.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or convey, transfer or
lease its properties and assets substantially as an entirety to any Person unless:
(a) the Person formed by such consolidation or into which the Company is merged or the
Person which acquires by conveyance or transfer, or which leases, the properties and assets
of the Company substantially as an entirety shall be a Corporation, partnership or trust,
shall be organized and validly existing under the laws of the United States of America, any
State thereof or the District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of (and premium, if any) and interest
on all the Securities and the performance or observance 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, no Event of Default, and no
event which, after notice or lapse of time or both, would become an Event of Default, shall
have happened and be continuing; and
(c) the Company has 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 complied with.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with, or merger by the Company into, any other Person or
any conveyance, transfer or lease of the properties and assets of the Company substantially as an
entirety in accordance with Section 801, the successor Person formed by such
42
consolidation or into which the Company is merged or 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 Person had been named as the
Company herein, and thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by or pursuant to 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:
(a) 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
(b) to add to the covenants of the Company for the benefit of the Holders of all or any
series of Securities (and if such covenants are to be for the benefit of less than all
series of Securities, stating that such covenants are expressly being included solely for
the benefit of one or more specified series) or to surrender any right or power herein
conferred upon the Company; or
(c) to add any additional Events of Default (and if such Events of Default are to be
for the benefit of less than all series of Securities, stating that such Events of Default
are being included solely for the benefit of such series); or
(d) to add to or change any of the provisions of this Indenture to such extent as shall
be necessary to permit or facilitate the issuance of Securities in bearer form, registrable
or not registrable as to principal, and with or without interest coupons; or
(e) 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
(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 such Security Outstanding; or
(f) to secure the Securities; or
(g) to establish the form or terms of Securities of any series as permitted by Sections
201 and 301; or
(h) to supplement any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the defeasance and discharge of any series of
43
Securities in accordance with the terms hereof, provided that any such action shall not
adversely affect the interest of the Holders of Securities of such series or any other
series of Securities in any material respect; or
(i) 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 611(b); or
(j) 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 such action shall not
adversely affect the interests of the Holders of Securities of any series in any material
respect; or
(k) to conform the terms of this Indenture or any series of Securities to the
description thereof contained in any prospectus or other offering document or memorandum
relating to the offer and sale of such Securities.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities of 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 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,
(a) change the Stated Maturity of the principal of, or any installment of principal of
or interest on, any such Security, or reduce the principal amount thereof or the rate of
interest thereon or any premium payable upon the redemption thereof, 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 502, or change any
Place of Payment where, or the coin or currency in which, any such Security or any premium
or the interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of
redemption or repayment, on or after the Redemption Date or any repayment date), or
(b) 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
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(c) modify any of the provisions of this Section 902, Section 513 or Section 1010,
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 902 and Section 1010, or the deletion of this proviso,
in accordance with the requirements of Sections 611(b) and 901(h).
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.
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 for such purpose, 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 90
days after such record date, any such consent previously given shall automatically and without
further action by any Holder be canceled and of no further effect.
It shall not be necessary for any Act of Holders under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve
the substance thereof.
SECTION 903. 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 601) 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.
SECTION 904. 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 to the extent provided therein.
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SECTION 905. 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 906. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a notation in a form
approved by the Trustee as to any matter provided for in such supplemental indenture. If the
Company 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 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of Section 902, the Company shall give notice thereof to the Holders of
each Outstanding Security so affected, pursuant to Section 106, setting forth in general terms the
substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. 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 on the Securities of
that series in accordance with the terms of the Securities and this Indenture. In the absence of
contrary provisions with respect to the Securities of any series, interest on the Securities of any
series may, at the option of the Company, be paid by check mailed to the address of the Person
entitled thereto as it appears on the Security Register.
SECTION 1002. 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 may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Securities of that series and this
Indenture may be served. The Company will give prompt written notice to the Trustee of the
location and 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
Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and demands.
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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 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect to any series of
Securities, it will, on or before each due date of the principal of (and premium, if any) or
interest on any of the Securities of that series, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum in the currency in which such series of Securities is payable
sufficient to pay the principal (and premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify
the Trustee of its 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 (and premium, if any) or interest on any
Securities of that series, deposit with a Paying Agent a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its 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, that such Paying Agent will:
(a) hold all sums held by it for the payment of the principal of (and premium, if any)
or interest on Securities of that series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed of as herein
provided;
(b) give the Trustee notice of any default by the Company (or any other obligor upon
the Securities of that series) in the making of any payment of principal (and premium, if
any) or interest on the Securities of that series; and
(c) at any time during the continuance of any such default, upon the written request of
the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by the Company or such
Paying Agent, and, upon such payment by any Paying Agent to the
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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 (and premium, if any) or interest on any Security of any
series and remaining unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall be paid to the Company 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, 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 on Company Request.
SECTION 1004. 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 existence, rights (charter and statutory) and
franchises; provided, however, that the Company shall not be required to preserve any such right or
franchise if the Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders.
SECTION 1005. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of its business to be
maintained and kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be necessary so that the business
carried on in connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in the judgment of
the Company, desirable in the conduct of its business and not disadvantageous in any material
respect to the Holders.
SECTION 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (1) all taxes, assessments and governmental charges levied or imposed upon it or
upon its income, profits or property, and (2) all lawful claims for labor, materials and supplies
which, if unpaid, might by law become a lien upon its property; provided, however, that the Company
shall not be required to pay or discharge or cause to be paid or discharged any such
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tax, assessment, charge or claim whose amount, applicability or validity is being contested in good
faith.
SECTION 1007. Restriction on Secured Debt.
(a) The Company will not itself, and will not permit any Subsidiary to, incur, issue, assume
or guarantee any notes, bonds, debentures or other similar evidences of indebtedness for money
borrowed (notes, bonds, debentures or other similar evidences of indebtedness for money borrowed
being hereinafter in this Article called “
Debt
”), secured by pledge of, or mortgage or other lien
on, any Property, now owned or hereafter owned by the Company or any Subsidiary, or any shares of
stock or Debt of any Subsidiary (pledges, mortgages and other liens being hereinafter in this
Article called “
Lien
” or “
Liens
”), without effectively providing that the Securities of each series
then Outstanding (together with, if the Company shall so determine, any other Debt of the Company
or such Subsidiary then existing or thereafter created which is not subordinate to the Securities
of each series then Outstanding) shall be secured equally and ratably with (or prior to) such
secured Debt, so long as such secured Debt shall be so secured; provided, however, that this
Section shall not apply to, and there shall be excluded from secured Debt in any computation under
this Section, Debt secured by:
(1) Liens on any Property acquired, constructed or improved by the Company or any
Subsidiary after the date of this Indenture which are created or assumed contemporaneously
with such acquisition, construction or improvement, or within 180 days before or after the
completion thereof, to secure or provide for the payment of all or any part of the cost of
such acquisition, construction or improvement;
(2) Liens of or upon any property, shares of capital stock or Debt existing at the time
of acquisition thereof, whether by merger, consolidation, purchase, lease or otherwise
(including Liens of or upon property, shares of capital stock or indebtedness of a
Corporation existing at the time such Corporation becomes a Subsidiary);
(3) Liens in favor of the Company or any Subsidiary;
(4) Liens in favor of the United States of America or any State thereof, or any
department, agency or instrumentality or political subdivision of the United States of
America or any State thereof or political entity affiliated therewith, or in favor of any
other country, or any political subdivision thereof, to secure partial, progress, advance or
other payments, or other obligations, pursuant to any contract or statute;
(5) Liens imposed by law, such as mechanics’, workmen’s, repairmen’s, materialmen’s,
carriers’, warehousemen’s, vendors’ or other similar liens arising in the ordinary course of
business;
(6) pledges or deposits under workmen’s compensation laws or similar legislation and
Liens of judgments thereunder which are not currently dischargeable, or good faith deposits
in connection with bids, tenders, contracts (other than for the payment of money) or leases
to which the Company or any Subsidiary is a party, or deposits to secure public or statutory
obligations of the Company or any Subsidiary, or deposits in connection with obtaining or
maintaining self- insurance or to obtain the benefits of any
49
law, regulation or arrangement pertaining to unemployment insurance, old age pensions,
social security or similar matters, or deposits of cash or obligations of the United States
of America to secure surety, appeal or customs bonds to which the Company or any Subsidiary
is a party, or deposits in litigation or other proceedings such as, but not limited to,
interpleader proceedings;
(7) Liens created by or resulting from any litigation or other proceeding which is
being contested in good faith by appropriate proceedings, including Liens arising out of
judgments or awards against the Company or any Subsidiary with respect to which the Company
or such Subsidiary is in good faith prosecuting an appeal or proceedings for review; or
Liens incurred by the Company or any Subsidiary for the purpose of obtaining a stay or
discharge in the course of any litigation or other proceeding to which the Company or such
Subsidiary is a party;
(8) Liens for taxes or assessments or governmental charges or levies not yet due or
delinquent, or which can thereafter be paid without penalty, or which are being contested in
good faith by appropriate proceedings;
(9) Liens consisting of easements, rights-of-way, zoning restrictions, restrictions on
the use of real property, and defects and irregularities in the title thereto, landlords’
liens and other similar liens and encumbrances none of which interfere materially with the
use of the property covered thereby in the ordinary course of the business of the Company or
such Subsidiary and which do not, in the opinion of the Company, materially detract from the
value of such properties; or
(10) any extension, renewal or replacement (or successive extensions, renewals or
replacements), as a whole or in part, of any Lien referred to in the foregoing clauses (1)
to (9), inclusive; provided, that (i) such extension, renewal or replacement Lien shall be
limited to all or a part of the same property, shares of stock or Debt that secured the Lien
extended, renewed or replaced (plus improvements on such property) and (ii) the Debt secured
by such Lien at such time is not increased.
(b) Notwithstanding the restrictions contained in Section 1007(a) of this Section, the Company
and its Subsidiaries, or any of them, may incur, issue, assume or guarantee Debt secured by Liens
without equally and ratably securing the Securities of each series then Outstanding, provided, that
at the time of such incurrence, issuance, assumption or guarantee, after giving effect thereto and
to the retirement of any Debt which is concurrently being retired, the aggregate amount of all
outstanding Debt secured by Liens which could not have been incurred, issued, assumed or guaranteed
by the Company or a Subsidiary without equally and ratably securing the Securities of each series
then Outstanding except for the provisions of this subdivision (b), together with the aggregate
amount of all Attributable Debt in respect of Sale and Leaseback Transactions, does not at such
time exceed 10% of Consolidated Net Tangible Assets of the Company.
50
SECTION 1008. Restriction on Sale and Leaseback Transactions.
(a) The Company will not itself, and it will not permit any Subsidiary to, enter into any
arrangement with any bank, insurance company or other lender or investor (not including the Company
or any Subsidiary) or to which any such lender or investor is a party, providing for the leasing by
the Company or a Subsidiary for a period, including renewals, in excess of three years of any
Principal Property which has been or is to be sold or transferred by the Company or any Subsidiary
to such lender or investor or to any Person to whom funds have been or are to be advanced by such
lender or investor on the security of such Principal Property (herein referred to as a “
Sale and
Leaseback Transaction
”) unless the Company within 180 days after the sale or transfer shall have
been made by the Company or by a Subsidiary, applies an amount equal to the greater of (i) the net
proceeds of the sale of the Principal Property sold and leased back pursuant to such arrangement or
(ii) the fair market value of the Principal Property so sold and leased back at the time of
entering into such arrangement (as determined by any two of the following: the Chairman or a Vice
Chairman of the Board of the Company, its President, its Chief Financial Officer, its Vice
President of Finance, its Treasurer or its Controller) to the retirement of Funded Debt of the
Company; provided, that the amount to be applied to the retirement of Funded Debt of the Company
shall be reduced by (A) the principal amount of any Securities delivered within 120 days after such
sale to the Trustee for retirement and cancellation, and (B) the principal amount of Funded Debt,
other than Securities, voluntarily retired by the Company within 120 days after such sale.
Notwithstanding the foregoing, no retirement referred to in this Section 1008(a) may be effected by
payment at maturity or pursuant to any mandatory sinking fund payment or mandatory prepayment
provision.
(b) Notwithstanding the restrictions contained in Section 1008(a), the Company and its
Subsidiaries, or any of them, may enter into a Sale and Leaseback Transaction, provided, that at
the time of such transaction, after giving effect thereto, the aggregate amount of all Attributable
Debt in respect of Sale and Leaseback Transactions existing at such time which could not have been
entered into except for the provisions of this Section 1008(b) plus the aggregate amount of Debt
secured by Liens (other than Debt secured by Liens pursuant to paragraphs (1) through (10),
inclusive, of Section 1007(a)) does not at such time exceed 10% of Consolidated Net Tangible Assets
of the Company.
(c) A Sale and Leaseback Transaction shall not be deemed to result in the creation of a Lien.
SECTION 1009. Defeasance of Certain Obligations.
The following provisions shall apply to the Securities of each series unless specifically
otherwise provided in a Board Resolution, Officers’ Certificate or indenture supplemental hereto
provided pursuant to Section 301. The Company may omit to comply with any term, provision or
condition set forth in Sections 1005, 1006, 1007 and 1008 and any such omission with respect to
Sections 1005, 1006, 1007 and 1008 shall not be an Event of Default, in each case with respect to
the Securities of that series, provided that the following conditions have been satisfied:
(a) with reference to this Section 1009, the Company has deposited or caused to be
irrevocably deposited with the Trustee (or another trustee satisfying the
51
requirements of Section 609) as trust funds in trust, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of the Securities of that series, (i)
money in an amount, or (ii) U.S. Government Obligations which through the payment of
interest and principal in respect thereof in accordance with their terms will provide not
later than one day before the due date of any payment referred to in clause (iii)(A) or (B)
of this subparagraph (a) money in an amount, or (iii) a combination thereof, sufficient, in
the opinion of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge (A) the
principal of (and premium, if any) and each installment of principal (and premium, if any)
and interest on the Outstanding Securities on the Stated Maturity of such principal or
installments of principal and interest and (B) any mandatory sinking fund payments or
analogous payments applicable to the Securities of such series on the day on which such
payments are due and payable in accordance with the terms of this Indenture and of such
Securities;
(b) such deposit shall not cause the Trustee with respect to the Securities of that
series to have a conflicting interest as defined in Section 608 and for purposes of the
Trust Indenture Act with respect to the Securities of any series;
(c) such deposit will not result in a breach or violation of, or constitute a default
under, this Indenture or any other agreement or instrument to which the Company is a party
or by which it is bound;
(d) no Event of Default or event which with notice or lapse of time would become an
Event of Default with respect to the Securities of that series shall have occurred and be
continuing on the date of such deposit;
(e) the Company has delivered to the Trustee an Opinion of Counsel to the effect that
Holders of the Securities of such series will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit and defeasance of certain obligations and
will be subject to Federal income tax on the same amount and in the same manner and at the
same times as would have been the case if such deposit and defeasance had not occurred; and
(f) 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
defeasance contemplated in this Section have been complied with.
SECTION 1010. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term, provision or
condition set forth in Sections 1004 to 1008, inclusive, with respect to the Securities of any
series if before the time for such compliance the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such term, provision or
condition, but no such waiver shall extend to or affect such term, provision or condition except to
the extent so expressly waived, and, until such waiver shall become effective,
52
the obligations of the Company and the duties of the Trustee in respect of any such term, provision
or condition shall remain in full force and effect.
The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Persons entitled to waive any such term, provision or condition. If a record date
is fixed for such purpose, the Holders on such record date or their duly designated proxies, and
only such Persons, shall be entitled to waive any such term, provision or condition hereunder,
whether or not such Holders remain Holders after such record date; provided that unless the Holders
of not less than a majority in principal amount of the Outstanding Securities of such series shall
have waived such term, provision or condition prior to the date which is 90 days after such record
date, any such waiver previously given shall automatically and without further action by any Holder
be canceled and of no further effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified as contemplated by Section 301
for Securities of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by an Officers’
Certificate. The Company shall, at least 45 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of
(a) such Redemption Date,
(b) if the Securities of such series have different terms and less than all of the
Securities of such series are to be redeemed, the terms of the Securities to be redeemed,
and
(c) if less than all the Securities of such series with identical terms are to be
redeemed, the principal amount of such 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, the Company
shall furnish the Trustee with an Officers’ Certificate evidencing compliance with such
restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of like tenor of any series 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 like tenor of such series not previously called for
redemption, by such method as the Trustee shall deem fair and appropriate and which may
53
provide for the selection for redemption of portions (equal to the minimum authorized denomination
for Securities of like tenor of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum authorized
denomination for Securities of that series.
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 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than
30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed,
at each such Holder’s address appearing in the Security Register.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Outstanding Securities of like tenor of any series are to be
redeemed, the identification (and, in the case of partial redemption, the principal amounts)
of the particular Securities to be redeemed,
(d) 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,
(e) the place or places where such Securities are to be surrendered for payment of the
Redemption Price, and
(f) that the redemption is for a sinking fund, if such is the case.
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.
SECTION 1105. 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 1003) an amount of money in immediately available funds sufficient to
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pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that date.
SECTION 1106. 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 and
accrued interest) 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, together with accrued interest to the Redemption Date; provided, however,
that, unless otherwise specified as contemplated by Section 301, installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the close of business on
the relevant Regular Record Dates according to their terms and the provisions of Section 307.
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 1107. Securities Redeemed in Part.
Any Security which is to be redeemed in part shall be surrendered at a Place of Payment for
such series (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 the same series and of like tenor, 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; provided,
however, that if a Global Security is so surrendered, such new Security so issued shall be a new
Global Security in a denomination equal to the unredeemed portion of the principal of the Global
Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
To the extent that the provisions of this Article shall be applicable to the Securities of a
series as specified pursuant to Section 301, the provisions of this Article shall be applicable to
any sinking fund for the retirement of Securities of such series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any
series is herein referred to as a “
mandatory sinking fund payment
”, and any payment in excess of
such minimum amount provided for by the terms of Securities of any series
55
is herein referred to as an “
optional sinking fund payment
”. If provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of like tenor of a series (other than any
previously called for redemption) and (2) may apply as a credit Securities of like tenor of a
series which have been redeemed either at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking fund payments pursuant to the
terms of such Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of like tenor of such series required to be made pursuant to
the terms of such Securities as provided for by the terms of such series; provided that such
Securities have not been previously so credited. Such Securities shall be received and credited
for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for Securities of like tenor of
a series, the Company will deliver to the Trustee an Officers’ Certificate specifying the amount of
the next ensuing sinking fund payment for such Securities pursuant to the terms of such Securities,
the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof,
if any, which is to be satisfied by delivering and crediting Securities of like tenor of that
series pursuant to Section 1202 and, at the time of delivery of such Officers’ Certificate, will
also deliver to the Trustee any Securities to be so delivered. Not less than 45 days before each
such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company in the manner
provided in Section 1104. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Sections 1106 and 1107.
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This instrument 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 instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
the day and year first above written.
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HILLENBRAND, INC.
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U.S. BANK NATIONAL ASSOCIATION
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